Common use of Fees and Expenses Clause in Contracts

Fees and Expenses. (a) Except as provided in this Section 9.3, all costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement will be paid by the party incurring such expense; provided, however, that the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the Company. (b) In the event that this Agreement is terminated: (i) (x) by the Company Board or the Parent Board pursuant to Section 8.1(e), or by the Parent Board pursuant to Section 8.1(f), and (y) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); then, in the case of a termination pursuant to (1) Section 9.3(b)(i), the Company shall pay to Parent an amount equal to $150,000,000 (the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other party would not enter into this Agreement. Accordingly, if a party fails promptly to pay the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party interest on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collection.

Fees and Expenses. (a) Except as provided set forth in this Section 9.38.03, all costs fees and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement will hereby shall be paid by the party incurring such expenseexpenses, whether or not the Merger is consummated; provided however, that the Company and Parent shall share equally all fees and expenses, other than attorneys' fees, incurred with respect to the printing and filing of the Joint Proxy Statement (including any related preliminary materials) and the Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto. (b) The Company shall pay Parent up to $1,500,000 as reimbursement for expenses of Parent actually incurred relating to the transactions contemplated by this Agreement prior to termination (including, but not limited to, fees and expenses of Parent's counsel, accountants and financial advisors, but excluding any discretionary fees paid to such financial advisors), upon the termination of this Agreement (i) by Parent or the Company pursuant to Section 8.01(d)(x), (ii) by Parent pursuant to Section 8.01(e), (iii) by Parent or the Company pursuant to Section 8.01(b) if the failure to satisfy the condition set forth in Section 7.02(a) by the Outside Date shall have resulted in the Closing not occurring, or (iv) by Parent pursuant to Section 8.01(g). (c) The Company shall pay Parent a termination fee of $25,600,000 upon (except as otherwise provided in the proviso to clause (iii) below) the earliest to occur of the following events: (i) the termination of this Agreement by Parent pursuant to Section 8.01(e); or (ii) the termination of this Agreement by Parent pursuant to Section 8.01(g) after a breach by the Company of this Agreement; or (iii) the termination of the Agreement by Parent or the Company pursuant to Section 8.01(d)(x) as a result of the failure to receive the requisite vote for approval of the Company Voting Proposal by the stockholders of the Company at the Company Meeting if, at the time of such failure, there shall have been announced an Alternative Transaction relating to the Company which shall not have been absolutely and unconditionally withdrawn and abandoned; provided, however, that if (A) the costs Alternative Transaction is a tender offer or exchange offer, (B) neither the Company nor any of its Affiliates enters into any contract or agreement with the bidder or any Affiliate of the bidder relating to such tender offer or exchange offer and (C) the Board of Directors of the Company recommends against acceptance of such tender offer or exchange offer, then the termination fee specified in this Section 8.03(c) shall only be payable by the Company if, within one year of the date of termination pursuant to this Section 8.03(c)(iii), (x) an Alternative Transaction is closed or (y) the Company enters into a binding agreement relating to an Alternative Transaction, in which event the termination fee shall be payable by the Company on the first to occur of (x) or (y). (d) Parent shall pay the Company up to $1,500,000 as reimbursement for expenses of printing and mailing the Joint Proxy StatementCompany actually incurred relating to the transactions contemplated by this Agreement prior to termination (including, and all filing and other but not limited to, but excluding any discretionary fees paid to such financial advisors), upon the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the Company. (b) In the event that termination of this Agreement is terminated: (i) (x) by the Company Board or the Parent Board pursuant to Section 8.1(e8.01(d)(y), or by the Parent Board pursuant to Section 8.1(f), and (y) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Parent Board Company pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn8.01(f); , (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d8.01(b) and if the Company Board is failure to satisfy the condition set forth in Section 7.03(a) by the Outside Date shall have resulted in the Closing not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or occurring, or (iv) by the Company Board pursuant to Section 8.1(k8.01(g); then, in . (e) Parent shall pay the case of Company a termination fee of $25,600,000 upon the termination of this Agreement by the Company pursuant to Section 8.01(f) or pursuant to Section 8.01(g) after a breach by Parent of this Agreement. (1f) The expenses and fees, if applicable, payable pursuant to Section 9.3(b)(i8.03(b), the Company shall pay to Parent an amount equal to $150,000,000 (the "Company Termination Fee"8.03(c), by wire transfer of same 8.03(d) and 8.03(e) shall be paid within one business day funds to an account designated by Parent, upon after demand therefor following the earlier first to occur of the consummation of such Alternative Transaction and events giving rise to the execution of such agreementpayment obligation described in Section 8.03(b), as applicable8.03(c)(i), (2) Section 9.3(b)(iiii) or Section 9.3(b)(iv(iii), 8.03(d) or 8.03(e). If one party fails to promptly pay to the Company other any expense reimbursement or fee due hereunder, the defaulting party shall pay the costs and expenses (including legal fees and expenses) in connection with any action, including the filing of any lawsuit or other legal action, taken to Parent an collect payment, together with interest on the amount equal of any unpaid fee at the publicly announced prime rate of Fleet Bank, N.A. plus five percent per annum, compounded quarterly, from the date such expense reimbursement or fee was required to the Company Termination Feebe paid. (g) As used in this Agreement, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: means (i) (x) by the Parent Board or the Company Board a transaction pursuant to Section 8.1(e), which any person (or by the Company Board pursuant to Section 8.1(g), and (ygroup of persons) a proposal for an Alternative Transaction with respect to Parent has been made to other than Parent or its stockholders affiliates (a "Third Party"), acquires more than 10% of the outstanding shares of Company Common Stock pursuant to a tender offer or exchange offer or otherwise, (ii) a merger or other business combination involving the Company pursuant to which any Third Party acquires more than 10% of the outstanding shares of Company Common Stock or of the entity surviving such merger or business combination, (iii) any other transaction pursuant to which any Third Party acquires control of assets (including for this purpose the outstanding equity securities of Subsidiaries of the Company and the entity surviving any merger or business combination including any of them) of the Company having a proposal or an intention fair market value equal to make such a proposal has been publicly announced or has otherwise become publicly known after more than 10% of the date fair market value of this Agreement and all the assets of the Company immediately prior to such termination (whether transaction, or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) any public announcement by the Parent Board pursuant to Section 8.1(j); then, in the case a Third Party of a termination pursuant proposal, plan or intention to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur do any of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent foregoing or any of its Subsidiaries enters into agreement to engage in any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other party would not enter into this Agreement. Accordingly, if a party fails promptly to pay the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party interest on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collectionforegoing.

Fees and Expenses. (a) Except as provided in this Section 9.35.09, all costs fees and expenses incurred in connection with the Mergers, this Agreement and the transactions contemplated by this Agreement will shall be paid by the party incurring such expense; providedfees or expenses, howeverwhether or not the Mergers are consummated, except that each of CEI and NU shall bear and pay one-half of the costs and expenses of incurred in connection with (1) the filing, printing and mailing of the Form S-4 and the Joint Proxy StatementStatement (including SEC filing fees), (2) the filings of the premerger notification and all filing and other fees paid to the SEC or report forms under the HSR Act in connection (including filing fees) and (3) the filings required under PUHCA. All stock transfer, real estate transfer, documentary, stamp, recording and other similar taxes (including interest, penalties and additions to any such Taxes) (the "Transfer Taxes") attributable to the transactions contemplated by this Agreement shall be paid by the Company. CEI and NU shall cooperate with the MergerCompany and with each other in the filing of such returns, will be borne equally including supplying in a timely manner a complete list of all real property interests held by Parent CEI or NU and the Companyany information with respect to such property that is reasonably necessary to complete any such returns. (b) In the event that this Agreement is terminated: (i) (x) by a NU Takeover Proposal shall have been made known to NU or any of the Company Board NU Subsidiaries or the Parent Board pursuant to Section 8.1(e), or by the Parent Board pursuant to Section 8.1(f), and (y) a proposal for an Alternative Transaction with respect to the Company has been made directly to the Company NU Shareholders generally or its stockholders or such a proposal or any person shall have publicly announced an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, NU Takeover Proposal shall have been rejected or shall have been withdrawn or terminated prior to the Company NU Shareholders Meeting or any termination of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction this Agreement) to make a NU Takeover Proposal and thereafter this Agreement is terminated by either CEI or any Alternative Transaction is consummated; NU pursuant to Section 7.01(b)(i) or by CEI pursuant to Section 7.01(d), (ii) by prior to or during the Parent Board pursuant to Section 8.1(h) and NU Shareholders Meeting (or any subsequent meeting of the NU Shareholders at which it is proposed that the NU Merger be approved), a proposal for an Alternative Transaction with respect NU Takeover Proposal shall have been made directly to the Company has been made to the Company NU Shareholders generally or its stockholders or such a proposal or any person shall have publicly announced an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); such NU Takeover Proposal shall have been rejected or shall have been withdrawn or terminated prior to the NU Shareholders Meeting or any termination of this Agreement) to make a NU Takeover Proposal and thereafter this Agreement is terminated by either CEI or NU pursuant to Section 7.01(b)(ii) or (iii) this Agreement is terminated by the Parent Board or the Company Board NU pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); then, in the case of a termination pursuant to (1) Section 9.3(b)(i7.01(f), the Company then NU shall immediately pay to Parent an amount CEI a fee equal to $150,000,000 110 million (the "Company Termination Fee"), payable by wire transfer of same day funds; provided, however, that no Termination Fee shall be payable to CEI pursuant to clauses (i) or (ii) of this paragraph (b) unless and until within 24 months of such termination NU or any NU Subsidiary (x) enters into any NU Acquisition Agreement or (y) consummates any NU Takeover Proposal (for the purposes of the foregoing proviso the terms "NU Acquisition Agreement" and "NU Takeover Proposal" shall have the meanings assigned to such terms in Section 4.02 except that the references to "15%" in the definition of "NU Takeover Proposal" in Section 4.02(a) shall be deemed to be references to "35%"), in which event the Termination Fee shall be immediately payable upon the first to occur of such events set forth in the preceding clauses (x) and (y). (c) If this Agreement is terminated by CEI or NU pursuant to Section 7.01(b)(ii), by NU pursuant to Section 7.01(f), by CEI pursuant to Section 7.01(c) or by CEI pursuant to Section 7.01(d) or if NU is otherwise obligated to pay the Termination Fee, NU shall immediately pay to CEI, by wire transfer of same day funds to funds, an account designated expense reimbursement fee of $20 million for fees and expenses incurred, or paid by Parentor on behalf of, upon CEI in connection with the earlier to occur of Mergers or the consummation transactions contemplated by this Agreement. The payment of such Alternative Transaction and expense reimbursement fee shall not affect the execution of such agreementextent to which, as applicableor the amount of, the Termination Fee which NU may separately be required to pay to CEI pursuant to Section 5.09(b). (2d) If this Agreement is terminated by NU pursuant to Section 9.3(b)(ii7.01(b)(iii) or by NU pursuant to Section 9.3(b)(iv7.01(e), the Company CEI shall immediately pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such terminationNU, by wire transfer of same day funds to funds, an account designated expense reimbursement fee of $20 million for fees and expenses incurred, or paid by Parent and (B) $105,000,000or on behalf of, NU in connection with the Mergers or the transactions contemplated by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%Agreement. (ce) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party NU acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement Sections 5.09(b) and that, without these agreements, the other party would not enter into this Agreement. Accordingly, if a party fails promptly to pay the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party interest on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collection.5.09

Fees and Expenses. (a) Except Whether or not the Merger is consummated, except as otherwise specifically provided in this Section 9.3herein, all costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement will shall be paid by the party incurring such expense; provided, however, that the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the Companyexpenses. (b) In The Company shall pay to Parent or its designee the event that this Agreement is terminatedCompany Termination Fee, by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, as follows: (i) if (xA) this Agreement is terminated pursuant to (1) Section 7.01(c) prior to a vote by the stockholders of the Company Board at the Special Meeting on the adoption of the agreement of merger (as such term is used in Section 251 of the Corporation Law) and the conditions in Section 6.01(b) (with respect to Orders under the Antitrust Laws) and Section 6.01(c) shall have been satisfied, (2) Section 7.01(d) or (3) Section 7.01(e); (B) following the Parent Board pursuant date hereof and prior to Section 8.1(e)the termination of this Agreement, or by the Parent Board pursuant to Section 8.1(f), and (y) a proposal for an Alternative Acquisition Transaction with respect to the Company has shall have been made to the Company or its shall have been made directly to the stockholders of the Company generally or such a proposal shall have otherwise become publicly known or any Person shall have publicly announced an intention (whether or not conditional) to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); thenproposal, in the case of a termination pursuant to Section 7.01(d), and such proposal or announcement of an intention to make such proposal shall not have been publicly and irrevocably withdrawn at least ten (110) Business Days prior to the Special Meeting shall have been made to the Company or the stockholders of the Company; and (C) within twelve (12) months following the termination of this Agreement, the Company enters into an agreement providing for, or consummates, a Qualifying Acquisition Transaction (as defined below), then the Company shall pay or cause to be paid the Company Termination Fee to Parent upon the consummation of a Qualifying Acquisition Transaction; (ii) if this Agreement is terminated by Parent pursuant to Section 9.3(b)(i7.01(h), then the Company shall pay or cause to be paid the Company Termination Fee promptly, and in any event not more than two (2) Business Days following such termination; or (iii) if this Agreement is terminated (A) by the Company pursuant to Section 7.01(g) or (B) pursuant to Section 7.01(d) and a Recommendation Change in response to an Intervening Event shall have been in effect at the time of the Special Meeting, then concurrently with (and as a condition to) such termination, the Company shall pay or cause to Parent an be paid the Company Termination Fee to Parent. (iv) As used herein “Company Termination Fee” shall mean a cash amount equal to $150,000,000 (the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%375 million. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other party would not enter into this Agreement. Accordingly, if a party fails promptly to pay the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party interest on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collection.

Fees and Expenses. (a) Except as provided in this Section 9.3, all costs All fees and expenses incurred in connection with this Agreement and the transactions Transactions contemplated hereby shall be borne and timely paid by the Party incurring such fees or expenses, whether or not the Transactions are consummated, except as may otherwise be expressly contemplated by this Agreement will be paid by the party incurring such expense; provided, however, that the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the CompanyAgreement. (b) In the event that this Agreement is terminatedthat: (i) (xA) by the Company an Acquisition Proposal or intention to make an Acquisition Proposal is made or disclosed to Seller’s stockholders, otherwise publicly disclosed or otherwise communicated to Seller, Seller Board or the Parent Board a committee thereof, and (B) this Agreement is thereafter terminated by Buyer or Seller pursuant to Section 8.1(e), 9.01(b)(ii) or by the Parent Board Buyer pursuant to Section 8.1(f), 9.01(c)(i) and (yC) a proposal for an Alternative Transaction if, concurrently with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known within twelve (12) months after the date of this Agreement and prior to any such termination referred to in clause (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such terminationB), the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); then, in the case of a termination pursuant to (1) Section 9.3(b)(i)Seller enters into a definitive agreement with respect to, the Company or Seller Board or any committee thereof recommends to Seller’s stockholders, any Acquisition Proposal and (2) any Acquisition Proposal is consummated, in such case, Seller shall pay to Parent an amount equal to $150,000,000 (the "Company Termination Fee"), Buyer or its designee by wire transfer of same day funds to an the account or accounts designated in writing by Parent, upon Buyer the earlier to occur of Termination Fee concurrently with the consummation of such Alternative Transaction and the execution of such agreement, as applicable, Acquisition Proposal; (2ii) this Agreement is terminated by Buyer pursuant to Section 9.3(b)(ii) or Section 9.3(b)(iv9.01(c)(ii), the Company Seller shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, Buyer or its designee by wire transfer of same day funds to an the account or accounts designated by Parent and Buyer or such designee the Termination Fee within two (B2) $105,000,000Business Days after such termination; or (iii) this Agreement is terminated by Seller pursuant to Section 9.01(d)(ii), Seller shall pay to Buyer or its designee by wire transfer of same day funds to an the account or accounts designated by ParentBuyer or such designee the Termination Fee prior to, ifand as a condition to, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% ; it being understood that in the definition of "Alternative Transaction" will no event shall Seller be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other party would not enter into this Agreement. Accordingly, if a party fails promptly required to pay the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party interest Termination Fee on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collectionmore than one occasion.

Fees and Expenses. (a) Except as provided set forth in this Section 9.37.03, all costs fees and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement will hereby shall be paid by the party incurring such expenseexpenses, whether or not the Merger is consummated; provided, however, that Parent and the costs Company shall share equally all SEC filing fees and printing expenses of incurred in connection with the printing and mailing filing of the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent /Prospectus (including any preliminary materials related thereto) and the CompanyRegistration Statement (including financial statements and exhibits) and any amendments or supplements thereto. (b) In Parent shall pay the event that Company a fee of $150 million (the "Fee"), plus the Company's actual, documented and reasonable out-of-pocket expenses relating to the transactions contemplated by this Agreement is terminated:(including, but not limited to, fees and expenses of counsel and accountants and out-of-pocket expenses (but not fees) of financial advisers) ("Expenses"), but in no event shall such Expenses exceed $7,500,000, upon the first to occur of any of the following events; provided that no Fee or Expenses shall be payable pursuant to this Section 7.03(b) if this Agreement has been previously terminated and such previous termination did not entitle the Company to receive a Fee pursuant to this Section 7.03(b): (i) the Final 10-Day Reference Price is equal to or greater than $56 and either (x) by the Company Board or shareholders of Parent shall not have approved each of the Reverse Stock Split, the Share Amendment, the issuance of Parent Common Stock in the Merger, the Parent Board pursuant to Section 8.1(e)Name Change and the New Parent Director Election on or before August 15, 1997 or by the Parent Board pursuant to Section 8.1(f), and (y) a proposal for the shareholders of Parent shall have affirmatively disapproved any of such actions at any time on or before August 15, 1997; or (ii) the shareholders of Parent shall have approved an Alternative Transaction Acquisition Proposal (other than with respect to the Company has been made to the Company or its stockholders affiliates) on or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such terminationbefore August 15, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn);1997; or (iii) if following the termination of this Agreement by the Parent Board or the Company Board pursuant to Section 8.1(d) 7.01(l), Parent shall accept and the Company Board consummate an Acquisition Proposal at a price per share of Parent Common Stock in excess of $29, which Acquisition Proposal is not at the time publicly announced within 60 days of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof)such termination; or (iv) the termination of this Agreement by the Company Board pursuant to Section 8.1(k7.01(e); then, in or (v) the case termination of a termination this Agreement by Parent pursuant to Section 7.01(f); or (1vi) Section 9.3(b)(i), the termination of this Agreement by the Company shall pay pursuant to Parent an amount equal to $150,000,000 (the "Company Termination Fee"Section 7.01(i), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In The Company shall pay Parent a fee of $150 million (the event that "Fee"), plus Parent's actual, documented and reasonable out-of-pocket expenses relating to the transactions contemplated by this Agreement is terminated:(including, but not limited to, fees and expenses of counsel and accountants and out-of-pocket expenses (but not fees) of financial advisers) ("Expenses"), but in no event shall such Expenses exceed $7,500,000, upon the first to occur of any of the following events; provided that no Fee or Expenses shall be payable pursuant to this Section 7.03(c) if this Agreement has been previously terminated and such previous termination did not entitle Parent to receive a Fee pursuant to this Section 7.03(c): (i) the shareholders of Parent shall have approved each of the Reverse Stock Split, the Share Amendment, the issuance of Parent Common Stock in the Merger, the Parent Name Change and the New Parent Director Election on or before August 15, 1997 and either (x) by the Parent Board or shareholders of the Company Board pursuant to Section 8.1(e)shall not have approved and adopted this Agreement by August 15, 1997 or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date shareholders of the Company shall have affirmatively disapproved this Agreement and prior to such termination (whether at any time on or not conditional and whether or not withdrawn) and (z) within 12 months after such terminationbefore August 15, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated1997; or (ii) the termination of this Agreement by the Company Board Parent pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof7.01(j); or (iviii) the termination of this Agreement by the Parent Board Company pursuant to Section 8.1(j7.01(k); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other party would not enter into this Agreement. Accordingly, if a party fails promptly to pay the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party interest on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collection.

Fees and Expenses. (a) Except as provided in this Section 9.38.03, whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement will Agreement, including the fees and disbursements of counsel, financial advisors and accountants, shall be paid by the party incurring such expense; provided, however, that the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the Companyexpenses. (b) In Provided that neither Parent nor Purchaser shall be in breach of any of their material obligations under this Agreement, the event that this Agreement is terminatedCompany shall pay, or cause to be paid, in same day funds to Parent (x) the Expenses and (y) the Termination Fee under the circumstances and at the times set forth as follows: (i) if Parent or Purchaser terminates this Agreement under Section 8.01(d) and, if such termination is because of the withdrawal, modification or change in the Board's recommendation of the Offer, the Merger or this Agreement, and if prior to the time of such withdrawal, modification or change, a Takeover Proposal shall have been made (other than a Takeover Proposal made prior to the date hereof), the Company shall pay the Expenses and the Termination Fee upon demand; (ii) if the Company terminates this Agreement under Section 8.01(e), the Company shall pay the Termination Fee concurrently with such termination and the Expenses upon demand; (iii) if Parent or Purchaser terminates this Agreement under Section 8.01(c) and at the time of any such termination, a Takeover Proposal shall have been made (other than a Takeover Proposal made prior to the date hereof), (x) by the Company Board or shall pay the Parent Board pursuant to Section 8.1(e), or by the Parent Board pursuant to Section 8.1(f)Expenses upon demand, and (y) if concurrently therewith or within nine months thereafter (A) the Company enters into a proposal for an Alternative Transaction merger agreement, acquisition agreement or similar agreement with respect to a Takeover Proposal, or a Takeover Proposal is consummated, involving any party (1) with whom the Company has been made had any discussions with respect to a Takeover Proposal, (2) to whom the Company furnished information with respect to or its stockholders with a view to a Takeover Proposal or such (3) who had submitted a proposal or an intention to make such expressed any interest publicly in a proposal has been publicly announced or has otherwise become publicly known Takeover Proposal, in the case of each of clauses (1), (2) and (3), after the date of this Agreement April 28, 1999 and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, or (B) the Company or any of its Subsidiaries enters into any definitive a merger agreement, acquisition agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction similar agreement with respect to the Company has been made to the Company a Superior Proposal, or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board Superior Proposal is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); consummated, then, in the case of a termination pursuant to either (1A) Section 9.3(b)(i)or (B) above, the Company shall pay to Parent an amount equal to $150,000,000 (the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, Fee upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) agreement or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) Takeover Proposal or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%Superior Proposal. (d) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other party would not enter into this Agreement. Accordingly, if a party fails promptly to pay the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party interest on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collection.

Fees and Expenses. (a) Except as provided with respect to Designated Company Expenses which will be borne by the Company in this accordance with Section 9.35.14, all costs fees and expenses incurred in connection with this Agreement Agreement, the Mergers and the other transactions contemplated by this Agreement will hereby shall be paid by Parent. For purposes of clarity, the party incurring such expense; provided, however, Parties acknowledge and agree that the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid set forth on Schedule 7.3 to the SEC or under the HSR Act in connection with the Merger, will Company Disclosure Schedules shall be borne equally by Parent and the CompanyParent. (b) In the event that this Agreement is terminatedthat: (i) (x1) by the Company Board or the Parent Board pursuant to Section 8.1(e), or by the Parent Board pursuant to Section 8.1(f), and (y) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination Agreement, an Acquisition Proposal (whether or not conditional conditional) (x) is made directly to the Company’s stockholders or is otherwise publicly disclosed and whether not withdrawn at least seven Business Days prior to the Company Stockholders Meeting or not withdrawn(y) is otherwise communicated to senior management of the Company or the Company Board, (2) this Agreement is terminated by the Company or Parent pursuant to Section 7.1(b)(i) or Section 7.1(b)(iii) or by Parent pursuant to Section 7.1(c)(i), and (z3) within 12 months after the date of such termination, the Company or any of its Subsidiaries enters into an agreement in respect of any definitive agreement providing Acquisition Proposal, or recommends or submits an Acquisition Proposal to its stockholders for adoption, or a transaction in respect of any Alternative Transaction or any Alternative Transaction Acquisition Proposal is consummated, which, in each case, need not be the same Acquisition Proposal that was made, disclosed or communicated prior to termination hereof (provided, that for purposes of this clause (3), each reference to “20%” in the definition of “Acquisition Proposal” shall be deemed to be a reference to “50%”); (ii) this Agreement is terminated by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof7.1(c)(ii); or (iviii) this Agreement is terminated by the Company Board pursuant to Section 8.1(k7.1(d)(ii); then, in the case of a termination pursuant to (1) Section 9.3(b)(i)any such event, the Company shall pay to Parent an amount equal to a fee of $150,000,000 9,500,000 (the "“Company Termination Fee"”), which shall be the sole and exclusive remedy of the Parent Parties against the Company, it being understood that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; provided, that the payment by the Company of the Company Termination Fee pursuant to this Section 7.3 shall not relieve the Company from any liability or damage resulting from a willful and material breach of any of its representations, warranties, covenants or agreements set forth in this Agreement or intentional fraud. (c) Payment of the Company Termination Fee shall be made by wire transfer of same day funds to an account the accounts designated by Parent, upon Parent (i) on the earlier to occur earliest of the consummation of such Alternative Transaction and the execution of such agreementa definitive agreement with respect to, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal submission to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e)stockholders of, or consummation of, any transaction contemplated by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, Acquisition Proposal in the case of a termination Company Termination Fee payable pursuant to (1) Section 9.3(c)(i7.3(b)(i), (ii) within three Business Days of a termination by Parent shall pay pursuant to Section 7.1(c)(ii), or (iii) simultaneously with, and as a condition to the Company an amount equal to $90,000,000 (the "Parent Termination Fee")effectiveness of, by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such a termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds pursuant to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c7.1(d)(ii), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party The Company acknowledges that the agreements contained in this Section 9.3 7.3 are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, the other party Parent Parties would not enter into this Agreement. Accordingly, if a party the Company fails promptly to pay the any amounts due pursuant to this Section 9.3 7.3, and, in order to obtain such payment, the other party Parent commences a suit that results in a judgment against the first party Company for the amounts set forth in this Section 9.37.3, the first party will Company shall pay to the other party Parent its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amounts set forth in due pursuant to this Section 9.3 7.3 from the date such payment was required to be made until the date of payment at a the prime lending rate per annum equal to the three-month LIBOR (as reported published in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) effect on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collectionmade.

Fees and Expenses. (a) Except as provided in this Section 9.3, all costs and expenses incurred in connection with If this Agreement and the transactions contemplated by this Agreement will be paid by the party incurring such expense; provided, however, that the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the Company. (b) In the event that this Agreement is terminated: shall have been terminated (i) pursuant to Section 7.1(f) or 7.1(g) hereof or (ii) pursuant to Section 7.1(h) hereof and, at the time of such stockholder vote, an Acquisition Proposal shall have been publicly announced and not withdrawn, terminated or lapsed, which provides for consideration per share of Common Stock for all such shares which is greater than $24 and which is reasonably capable of being financed by the Person making such proposal or (iii) pursuant to Section 7.1(h) in circumstances where clause (ii) above does not apply, then the Company shall, promptly, but in no event later than one business day after the termination of this Agreement (or in the case of clause (i) above by reason of a termination pursuant to Section 7.1(f) hereof, simultaneously with such termination), pay each of Reckson and Crescent an amount equal to the Applicable Break-Up Fee (as defined hereafter); provided that none of Reckson, Crescent or Buyer was in material breach of any of its representations, warranties, covenants or agreements hereunder at the time of termination. Only one fee in an amount not to exceed the amount of the Applicable Break-up Fee shall be payable to each of Reckson and Crescent pursuant to this Section 7.3(a). Payment of the Applicable Break-Up Fee shall be made, as directed by the Party entitled thereto, by wire transfer in immediately available funds promptly, but in no event later than two (2) business days following such termination. Each "Applicable Break-Up Fee" shall be an amount equal to the lesser of (x) by $9 million in the Company Board or case of clause (i), $4.5 million in the Parent Board case of clause (ii) and $1.75 million in the case of clause (iii) plus, in the case of a Break-Up Fee payable pursuant to Section 8.1(e)clause (i) or (ii) above, or by the Parent Board pursuant to Section 8.1(f), Expense Amount (as defined hereafter) (the "Base Amount") and (y) a proposal for an Alternative Transaction with respect the maximum amount that can be paid to the Company has been made party entitled to the Applicable Breakup Fee in the year in which this Agreement is terminated (the "Termination Year") and in all relevant taxable years thereafter without causing it to fail to meet the requirements of sections 856(c)(2) and (3) of the Code (the "REIT Requirements") for such year, determined as if the payment of such amount did not constitute income described in sections 856(c)(2)(A)-(H) and 856(c)(3)(A)-(I) of the Code ("Qualifying Income"), as determined by independent accountants to the party entitled to the Applicable Breakup Fee. Notwithstanding the foregoing, in the event the party entitled to the Applicable Breakup Fee receives a ruling from the Internal Revenue Service (a "Break-Up Fee Ruling") holding that such party's receipt of the Base Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of the REIT Requirements, such party's Applicable Break-Up Fee shall be an amount equal to the Base Amount. If the amount payable for the Termination Year to the party entitled to the Applicable Break-up Fee under the preceding sentence is less than the Base Amount, the Company shall place the remaining portion of the Base Amount in escrow and shall not release any portion thereof to such party unless and until the Company receives either of the following: (i) a letter from such party's independent accountants indicating that additional amounts can be paid at that time to such party without causing such party to fail to meet the REIT Requirements for any relevant taxable year, in which event the Company shall pay to such party such amount, or its stockholders or (ii) a Break-Up Fee Ruling, in which event the Company shall pay to such a proposal or an intention party the unpaid Base Amount. The Company's obligation to make such a proposal has been publicly announced or has otherwise become publicly known after pay any unpaid portion of either party's Applicable Break-Up Fee shall terminate three years from the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); then, in the case of a termination pursuant to (1) Section 9.3(b)(i), the Company shall pay have no obligation to Parent an amount equal make any further payments notwithstanding that the entire Base Amount relating to $150,000,000 (the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation such Applicable Break-Up Fee has not been paid as of such Alternative Transaction and date. The "Expense Amount" relating to each Applicable Break-Up Fee shall be the execution amount of such agreementactual, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), direct out-of-pocket expenses incurred by the Company shall pay to Parent an amount equal party entitled to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% Applicable Break-Up Fee in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction connection with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and thatAgreement; provided, without these agreements, the other party would not enter into this Agreement. Accordingly, if a party fails promptly to pay the amounts due pursuant to this Section 9.3 andhowever, in order no event shall the Expense Amount relating to obtain such payment, each Applicable Break-Up Fee exceed $1.75 million in the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party interest on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collectionaggregate.

Fees and Expenses. (a) Except as provided in this Subject to Sections 9.1 and Section 9.310.13 and the provisions of Section 8.3(b) below, all costs and expenses Expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement will hereby shall be paid by the party Party incurring such expense; providedexpenses. As used in this Agreement, however“Expenses” shall include all out-of-pocket expenses (including all fees and expenses of counsel, that accountants, investment bankers, financing sources, experts and consultants to a Party hereto and/ or any of its Affiliates) incurred by a Party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution or performance of this Agreement or any ancillary document related hereto and all other matters related to the consummation of this Agreement, including the Conversion. With respect to OAC, the term “Expenses” shall include all costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act incurred in connection with the MergerInitial Extension, will be borne equally by Parent the Second Extension, the Third Extension and the CompanyExtension and any and all deferred expenses (including underwriting commissions payable to the underwriters and any legal fees) of the IPO upon consummation of a Business Combination, and other deferred expenses owed to its legal counsel, accountants and other advisors for its activities conducted in connection with seeking a Business Combination with other potential third parties prior to the date of this Agreement (collectively “OAC Deferred Expenses”). (b) In Notwithstanding the provisions of Section 8.3(a) above, and in addition to the requirements of Section 5.16 above, in the event that this Agreement is terminated: and to the extent that, prior to the Closing Date (i) OAC shall have less than $5,000,001 in net tangible assets (x) by excluding (solely for the Company Board or the Parent Board pursuant to Section 8.1(e), or by the Parent Board pursuant to Section 8.1(f), and (y) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date purposes of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawnSection 8.3(b)) the net tangible assets of the Company) and (zii) within 12 months after such terminationthe Company shall consummate a Company Public Offering contemplated by subsection (ii) of Section 5.6(b) above, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); then, in the case of a termination pursuant to (1) Section 9.3(b)(i), the Company shall pay to Parent an amount equal to $150,000,000 (the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to agrees that (A) on the Closing Date it will utilize up to ten percent (10%) of the gross proceeds of such Company Public Offering (up to $45,000,000 within two business days after 20 million of such termination, gross proceeds) to pay for all or a portion of the OAC Deferred Expenses as directed by wire transfer of same day funds to an account designated by Parent OAC and (B) if the gross proceeds of a Company Public Offering exceeds $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination20 million, the Company enters into any definitive agreement providing will utilize up to $5.0 million of the gross proceeds of such Company Public Offering to pay for any Alternative Transaction all or any Alternative Transaction is consummateda portion of the OAC Deferred Expenses as directed by OAC. For purposes the avoidance of doubt, the financial obligations of the Company under this Section 9.3(b), references to 20% 5.6(b) shall be net of any net assets in cash or immediately marketable securities that are retained by OAC as at the definition Closing Date. The Company will duly and promptly reserve such gross proceeds amounts expressly for such use upon any closing of "Alternative Transaction" a Company Public Offering. The foregoing provision will be deemed to be references to 50%. (c) In applicable even in the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e), or Public Offering is undertaken by the a Target Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by other than the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other party would not enter into this Agreement. Accordingly, if a party fails promptly to pay the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party interest on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collection.”

Fees and Expenses. (a) In the event that (i) this Agreement is terminated pursuant to Section 8.01(e), 8.01(j) or 8.01(k); or (ii) this Agreement is terminated pursuant to Section 8.01(f) or 8.01(h) and the Company enters into an agreement with respect to an Acquisition Proposal, or an Acquisition Proposal is consummated, in each case within 12 months after such termination, and the Company shall not theretofore have been required to pay the Fee to Parent pursuant to Section 8.05(a)(i) or 8.05(a)(ii); then, in any such event, the Company shall pay Parent promptly (but in no event later than 10 business days after the first of such events shall have occurred) a fee equal to $3,855,000 (the "Fee"), which amount shall be payable in immediately available funds, plus all Expenses (as hereinafter defined). (b) If Parent shall fail to receive the requisite vote for approval at the Parent Shareholders' Meeting and as a result Parent is unable to consummate the transaction, then, in such event, Parent shall pay the Company promptly (but in no event later than 10 business days after the failure to receive the requisite vote for approval) the Fee, which amount shall be payable in immediately available funds, plus all Expenses. (c) If this Agreement is terminated for any reason whatsoever and a party hereto is in material breach of its material covenants and agreements contained in this Agreement or is in material breach of its representations and warranties contained in this Agreement, such party shall, whether or not any payment is made pursuant to Section 8.05(a), reimburse the other party hereto and their respective stockholders and affiliates (not later than five business days after submission of statements therefor) for all out-of-pocket expenses and fees (including, without limitation, all fees of counsel, accountants, experts and consultants and their respective stockholders and affiliates) incurred or accrued by either of them or on their behalf in connection with the Merger or other transactions contemplated by this Agreement and for which such party or its stockholders or affiliates is liable (all the foregoing being referred to herein collectively as the "Expenses"); provided, however, that in no event shall either party be obligated to pay Expenses incurred by the other party in excess of $1,000,000. (d) Except as provided set forth in this Section 9.38.05, all costs and expenses incurred in connection with this Agreement Agreement, the Voting Agreements and the Merger or other transactions contemplated by this Agreement will shall be paid by the party incurring such expense; providedexpenses, howeverwhether or not the Merger and other transactions contemplated by this Agreement are consummated, except that the costs Company and expenses Parent each shall pay one-half of all Expenses relating to printing and mailing filing of the Joint Registration Statement and the Proxy Statement, and all filing SEC and other regulatory filing fees paid to the SEC or under the HSR Act incurred in connection with the Merger, will be borne equally by Parent Registration Statement and the CompanyProxy Statement. (be) In the event that this Agreement is terminated: (i) (x) by the Company Board shall fail to pay the Fee or any Expenses when due, the term "Expenses" shall be deemed to include the costs and expenses actually incurred or accrued by Parent Board pursuant to and Merger Sub and their respective stockholders and affiliates (including, without limitation, fees and expenses of counsel) in connection with the collection under and enforcement of this Section 8.1(e)8.05, together with interest on such unpaid Fee and Expenses, commencing on the date that the Fee or by the Parent Board pursuant to Section 8.1(f)such Expenses became due, and (y) at a proposal for an Alternative Transaction with respect rate equal to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been rate of interest publicly announced or has otherwise become publicly known after the date of this Agreement and prior by Citibank, N.A., from time to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); thentime, in the case City of a termination pursuant to (1) Section 9.3(b)(i), the Company shall pay to Parent an amount equal to $150,000,000 (the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreementNew York, as applicable, (such bank's Base Rate plus 2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (cf) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall fail to pay to any Expenses when due, the Company an amount equal to $90,000,000 (the term "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment Expenses" shall be made within two business days after such termination deemed to include the costs and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated expenses actually incurred or accrued by the Company and their respective stockholders and affiliates (Bincluding, without limitation, fees and expenses of counsel) $45,000,000, by wire transfer of same day funds to an account designated by in connection with the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes collection under and enforcement of this Section 9.3(c)8.05, references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other party would not enter into this Agreement. Accordingly, if a party fails promptly to pay the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party together with interest on such unpaid Expenses, commencing on the amounts set forth in this Section 9.3 date that such Expenses became due, at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) orrate of interest publicly announced by Citibank, if not reported thereinN.A., from time to time, in another authoritative source selected by the party entitled to City of New York, as such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) bank's Base Rate plus 250 basis points, and including reasonable fees and related expenses of collection2%.

Fees and Expenses. (a) Except as otherwise provided in this Section 9.37.3 or as contemplated by Section 2.2, all costs fees and expenses incurred in connection with this Agreement Agreement, the Merger and the other transactions contemplated by this Agreement will hereby shall be paid by the party incurring such expense; providedfees or expenses, however, that whether or not the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the CompanyMerger is consummated. (b) In the event that that: (1) (A) an Acquisition Proposal (whether or not conditional) or intention to make an Acquisition Proposal (whether or not conditional) shall have been made directly to the Company’s stockholders, otherwise publicly disclosed or otherwise communicated to senior management of the Company or the Company Board (or any committee thereof), (B) this Agreement is terminated: (i) (x) thereafter terminated by the Company Board or the Parent Board pursuant to Section 8.1(e), 7.1(b)(1) or Section 7.1(b)(3) or by the Parent Board pursuant to Section 8.1(f), 7.1(c)(1) and (yC) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known within twelve (12) months after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company or any of its Subsidiaries enters into a definitive binding agreement in respect of any definitive agreement providing Acquisition Proposal, or recommends or submits an Acquisition Proposal to its stockholders for any Alternative Transaction adoption, or any Alternative Transaction a transaction in respect of an Acquisition Proposal is consummated; , which, in each case, need not be the same Acquisition Proposal that shall have been made, publicly disclosed or communicated prior to termination hereof (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal provided that for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date purposes of this Agreement and prior clause (C), each reference to such termination (whether or not conditional and whether or not withdrawn“20%” in the definition of “Acquisition Proposal” shall be deemed to be a reference to “a majority”); (iii2) this Agreement is terminated by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof7.1(c)(2); or (iv3) this Agreement is terminated by the Company Board pursuant to Section 8.1(k7.1(d)(2); then, in the case of a termination pursuant to (1) Section 9.3(b)(i)any such event, the Company shall pay to Parent an amount equal to a termination fee of two million U.S. dollars ($150,000,000 2,000,000) (the "Company “Termination Fee"”), it being understood that in no event shall the Company be required to pay the Termination Fee on more than one occasion. (c) Payment of the Termination Fee shall be made by wire transfer of same day funds to an the account or accounts designated by Parent, upon Parent (i) on the earlier to occur earliest of the consummation of such Alternative Transaction and the execution of such agreementa definitive agreement with respect to, recommendation or submission to the stockholders of, or consummation of, any transaction contemplated by an Acquisition Proposal, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition case of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board a Termination Fee payable pursuant to Section 8.1(e7.3(b)(1), (ii) as promptly as reasonably practicable after termination (and, in any event, within two Business Days thereof), in the case of termination by Parent pursuant to Section 7.1(c)(2), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) simultaneously with, and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect as a condition to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); theneffectiveness of, termination, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds pursuant to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c7.1(d)(2), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party The Company acknowledges that the agreements contained in this Section 9.3 7.3 are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, the other party Parent and Merger Sub would not enter into this Agreement. Accordingly; accordingly, if a party the Company fails promptly to pay the any amounts due pursuant to this Section 9.3 7.3, and, in order to obtain such payment, the other party Parent commences a suit that results in a judgment against the first party Company for the amounts set forth in this Section 9.37.3, the first party will Company shall pay to the other party Parent its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amounts set forth in due pursuant to this Section 9.3 7.3 from the date such payment was required to be made until the date of payment at a the prime lending rate per annum equal to the three-month LIBOR (as reported published in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) effect on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collectionmade.

Fees and Expenses. (a) Except as provided in paragraphs (b) and (c) of this Section 9.35.06, all costs fees and expenses incurred in connection with this Agreement Agreement, the Offer, the Merger and the other transactions contemplated by this Agreement will Agreement, shall be paid by the party incurring such expense; providedfees or expenses, howeverwhether or not the Offer or the Merger is consummated, except that the costs filings fees and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act incurred in connection with the Mergerpreparation by the financial printer, will filing, printing and mailing of the Offer Documents, the Schedule 14D-9 and the Proxy Statement shall be borne shared equally by Parent and the Company. (b) In the event that (i) this Agreement is terminated: terminated by Parent pursuant to Section 7.01(e)(i) or Section 7.01(e)(ii), (iii) (x) this Agreement is terminated by the Company Board or the Parent Board pursuant to Section 8.1(e), 7.01(f) or by the Parent Board pursuant to Section 8.1(f), and (yiii)(A) a proposal for an Alternative Transaction with respect to the Company has Takeover Proposal shall have been made to the Company or its shall have been made directly to the stockholders of the Company generally or such a proposal or an intention to make such a proposal has been publicly announced or has shall have otherwise become publicly known after the date of this Agreement and prior to such termination or any person shall have publicly announced an intention (whether or not conditional and whether conditional) to make a Takeover Proposal, (B) thereafter this Agreement is terminated (I) by Company pursuant to Section 7.01(b)(i) or not withdrawn(II) by either Parent or the Company pursuant to Section 7.01(b)(iii) and (zC) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); then, in the case of a termination pursuant to (1) Section 9.3(b)(i), the Company shall pay to Parent an amount equal to $150,000,000 (the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into a definitive Contract to consummate, or consummates, the transactions contemplated by any definitive agreement providing for any Alternative Transaction Takeover Proposal (regardless of whether such Takeover Proposal is made before or any Alternative Transaction is consummated. For purposes after termination of this Section 9.3(bAgreement), references then the Company shall pay Parent a fee equal to 20% $45,650,000 (the “Termination Fee”) plus Expenses of up to $7,500,000, by wire transfer of same-day funds on the first Business Day following (x) in the definition case of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: a payment required by clause (i) or (xii) by above, the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), date of termination of this Agreement and (y) in the case of a proposal payment required by clause (iii) above, the date of the first to occur of the events referred to in clause (iii)(C) above. “Expenses” shall mean the cash amount necessary to reimburse Parent, Merger Sub and each of their respective Affiliates for an Alternative Transaction with respect to Parent has been made to Parent all out-of-pocket fees and expenses incurred (whether or its stockholders not billed) at any time (whether before or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and Agreement) prior to such the termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether by any of them or not conditional and whether or not withdrawn); (iii) by on their behalf in connection with the Parent Board or Offer, the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time Merger, this Agreement, their due diligence investigation of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, (including the other party would not enter into this Agreement. Accordingly, if a party fails promptly to pay the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party interest on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collectioncounsel, investment banking firms or financial advisors and their respective counsel and representatives).

Fees and Expenses. (a) Except as otherwise provided in this Section 9.3Section, all costs fees and expenses incurred in connection with this Agreement Agreement, the Merger, the Spin-Off and the other transactions contemplated by this Agreement will hereby shall be paid by the party incurring such expense; providedfees or expenses, however, that whether or not the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the CompanyMerger is consummated. (b) In the event that this Agreement is terminatedthat: (i) (xA) an Acquisition Proposal (whether or not conditional) or intention to make an Acquisition Proposal (whether or not conditional) is made directly to the Company’s stockholders or is otherwise publicly disclosed or otherwise communicated to senior management of the Company or the Company Board, (B) this Agreement is terminated by the Company Board or the Parent Board pursuant to Section 8.1(e), 7.1(b)(i) or (b)(iii) or by the Parent Board pursuant to Section 8.1(f7.1(c)(i), and (y) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (zC) within 12 months after the date of such termination, the Company or any of its Subsidiaries enters into any a definitive agreement providing in respect of any Acquisition Proposal (which such transaction is subsequently consummated), or recommends or submits an Acquisition Proposal to its stockholders for approval (which such transaction is subsequently consummated), or a transaction in respect of any Alternative Transaction or any Alternative Transaction Acquisition Proposal is consummated; , which, in each case, need not be the same Acquisition Proposal that was made, disclosed or communicated prior to termination hereof (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal provided, that for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date purposes of this Agreement and prior clause (C), each reference to such termination (whether or not conditional and whether or not withdrawn); (iii) by “15%” in the Parent Board or the Company Board pursuant definition of “Acquisition Proposal” shall be deemed to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled be a reference to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof“50%”); or (ivii) this Agreement is terminated by the Company Board Parent pursuant to Section 8.1(k7.1(c)(ii); then, in the case of a termination pursuant to (1) Section 9.3(b)(i)any such event, the Company shall pay to Parent an amount equal to a fee of $150,000,000 5,000,000 (the "“Company Termination Breakup Fee"”) less the amount of Parent Expenses previously paid to Parent (if any), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), it being understood that in no event shall the Company shall be required to pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%Breakup Fee on more than one occasion. (c) In the event that this Agreement is terminated: (i) (x) terminated by the Company or Parent Board or the Company Board pursuant to Section 8.1(e7.1(b)(iii) or by Parent pursuant to Section 7.1(c)(i) under circumstances in which the Company Breakup Fee is not then payable, then the Company shall reimburse Parent and its Affiliates for all of their actual documented out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants) incurred in connection with this Agreement and the transactions contemplated hereby (the “Parent Expenses”), up to a maximum amount of $1,500,000. (d) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 7.1(b)(iv) or by the Company Board pursuant to Section 8.1(g7.1(d)(i), then Parent shall reimburse the Company and its Affiliates for all of their actual documented out-of-pocket fees and expenses (yincluding all fees and expenses of counsel, accountants, investment bankers, experts and consultants) a proposal for an Alternative Transaction incurred in connection with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior the transactions contemplated hereby (the “Company Expenses”), up to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; ora maximum amount of $1,500,000. (iie) by Payment of the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been Breakup Fee shall be made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date by wire transfer of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect immediately available funds to the notice and cure provisions thereof); or account designated by Parent (ivi) upon consummation of any transaction contemplated by the Parent Board pursuant to Section 8.1(j); thenan Acquisition Proposal, in the case of a termination Company Breakup Fee payable pursuant to (1) Section 9.3(c)(i7.3(b)(i), Parent shall pay to the Company an amount equal to $90,000,000 or (the "Parent Termination Fee"ii) as promptly as reasonably practicable after termination (and, in any event, within five Business Days thereof), in the case of a Company Breakup Fee payable pursuant to Section 7.3(b)(ii). Payment of the Parent Expenses shall be made by wire transfer of same day funds to an account the accounts designated by Parent within five Business Days after the Company, upon the earlier to occur ’s having been notified of the consummation amounts thereof by Parent. (f) Payment of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment Expenses shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account the accounts designated by the Company and (B) $45,000,000, by wire transfer within five Business Days after Parent having been notified of same day funds to an account designated the amounts thereof by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (dg) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, the other party would not enter into this Agreement. Accordingly, if a any party fails promptly to pay the any amounts due pursuant to this Section 9.3 Section, and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3defaulting party, the first defaulting party will shall pay to the other party its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 9.3 due from the date such payment was required to be made until the date of payment at a the prime lending rate per annum equal to the three-month LIBOR (as reported published in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) effect on the date such payment was required to be made made. (or if no quotation for three-month LIBOR is available for such dateh) The Company Breakup Fee, on the next preceding date for which such a quotation is available) plus 250 basis pointsParent Expenses and Company Expenses are not liquidated damages, and including reasonable fees and related expenses payment thereof shall not relieve any party from any liability or damage resulting from a breach of collectionthis Agreement.

Fees and Expenses. (a) Except as otherwise provided in this Section 9.3section 7.3, all costs fees and expenses incurred in connection with this Agreement Agreement, the Merger and the other transactions contemplated by this Agreement will hereby shall be paid by the party incurring such expense; providedfees or expenses, howeverwhether or not the Merger is consummated, except that the costs and expenses of incurred in connection with the filing, printing and mailing of the Joint Schedule 13E-3 and the Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act SEC, in each case in connection with the MergerMerger (other than attorneys’ fees, will accountants’ fees and related expenses), shall be borne shared equally by Parent VMware and the CompanyPivotal. (b) In the event that this Agreement is terminatedthat: (i) (xA) by the Company Board or the Parent Board pursuant to Section 8.1(e), or by the Parent Board pursuant to Section 8.1(f), and (y) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination Acquisition Proposal (whether or not conditional and conditional) or intention to make an Acquisition Proposal (whether or not withdrawnconditional) is made directly to Pivotal’s stockholders or is otherwise publicly disclosed or otherwise communicated to senior management of Pivotal, the Pivotal Special Committee or the Pivotal Board, and, in each case, not withdrawn prior to the date of the Pivotal Stockholder Meeting (in the case of termination pursuant to section 7.1(b)(iii)) or the date of termination (in the case of termination pursuant to sections 7.1(b)(i) or 7.1(c)(i)), (B) this Agreement is terminated by Pivotal or VMware pursuant to section 7.1(b)(i) or section 7.1(b)(iii) or by VMware pursuant to section 7.1(c)(i) (in the case of section 7.1(c)(i) due to a breach by Pivotal of any covenant contained in this Agreement) and (zC) within 12 months after the date of such termination, the Company or any of its Subsidiaries Pivotal enters into an agreement (which is subsequently consummated) in respect of any definitive agreement providing Acquisition Proposal, or recommends or submits an Acquisition Proposal (which is subsequently consummated) to its stockholders for adoption, or a transaction in respect of any Alternative Transaction or any Alternative Transaction Acquisition Proposal is consummated, which, in each case, need not be the same Acquisition Proposal that was made, disclosed or communicated prior to termination hereof (except, that for purposes of this clause (C), each reference to “15%” in the definition of “Acquisition Proposal” shall be deemed to be a reference to “50%”); (ii) this Agreement is terminated by the Parent Board VMware pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereofsection 7.1(c)(ii); or (iviii) this Agreement is terminated by the Company Board Pivotal pursuant to Section 8.1(ksection 7.1(d)(ii); then, in the case of a termination pursuant to (1) Section 9.3(b)(i)any such event, the Company Pivotal shall pay to Parent an amount equal to VMware a fee of $150,000,000 95,000,000 (the "Company “Termination Fee"”), it being understood that in no event shall Pivotal be required to pay the Termination Fee on more than one occasion. The payment by Pivotal of the Termination Fee pursuant to this section 7.3 shall not relieve Pivotal from any liability or damage resulting from (x) fraud or (y) any willful and material breach of any of its covenants or agreements set forth in this Agreement prior to termination which relates to the termination of this Agreement in accordance with its terms. Notwithstanding section 7.2(c) or anything else to the contrary in this Agreement (but subject to the preceding sentence), VMware and Merger Sub agree that upon any valid termination of this Agreement under circumstances where the Termination Fee is payable by Pivotal pursuant to this section 7.3 and such Termination Fee is paid in full and accepted by VMware, VMware and Merger Sub shall be precluded from any other remedy against Pivotal, at law or in equity or otherwise, and neither VMware nor Merger Sub shall seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against Pivotal or any of the Pivotal’s Subsidiaries or any of their respective directors, officers, employees, partners, managers, members, shareholders or Affiliates or their respective Representatives in connection with this Agreement or the transactions contemplated hereby. (c) Payment of the Termination Fee shall be made by wire transfer of same day funds to an account the accounts designated by Parent, upon the earlier to occur of VMware (i) no later than the consummation of such Alternative Transaction and the execution of such agreementof, any transaction contemplated by an Acquisition Proposal, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(ivin the case of a Termination Fee payable pursuant to section 7.3(b)(i), the Company shall pay to Parent an amount equal to the Company Termination Fee(ii) as promptly as reasonably practicable after termination (and, which payment shall be made in any event, within two business days after such termination and (3) Section 9.3(b)(iiiBusiness Days thereof), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition case of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) (x) termination by the Parent Board or the Company Board VMware pursuant to Section 8.1(esection 7.1(c)(ii), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) substantially concurrently with, and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect as a condition to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); theneffectiveness of, termination, in the case of a termination by Pivotal pursuant to (1) Section 9.3(c)(isection 7.1(d)(ii), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer . Table of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%.Contents (d) Each party Pivotal acknowledges that the agreements contained in this Section 9.3 section 7.3 are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, the other party VMware and Merger Sub would not enter into this Agreement. Each party further acknowledges that the Termination Fee is not a penalty, but represents liquidated damages in a reasonable amount that, without limiting any rights of any Person pursuant to section 7.2(c), will compensate VMware and Merger Sub in the circumstances in which the Termination Fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger. Accordingly, if a party Pivotal fails promptly to pay the any amounts due pursuant to this Section 9.3 section 7.3, and, in order to obtain such payment, the other party VMware commences a suit Legal Proceeding that results in a judgment against the first party Pivotal for the amounts set forth in this Section 9.3section 7.3, the first party will Pivotal shall pay to the other party VMware its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceeding, together with interest on the amounts set forth in due pursuant to this Section 9.3 section 7.3 from the date such payment was required to be made until the date of payment at a the prime lending rate per annum equal to the three-month LIBOR (as reported published in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) effect on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collectionmade.

Fees and Expenses. (a) Except In the event that: (i) Parent or the Company terminates this Agreement pursuant to Section 9.01(b)(i) and, at the time of such termination, one or more of the conditions set forth in Section 8.01(c) (if the failure of such condition to be satisfied is a result of a Restraint arising under Antitrust Laws), Section 8.01(d) or Section 8.02(d) were not satisfied or waived; (ii) Parent or the Company terminates this Agreement pursuant to Section 9.01(b)(ii) as a result of a Restraint arising under Antitrust Laws; or (iii) Parent terminates this Agreement pursuant to Section 9.01(c)(ii), and, in the case of each of clauses (i), (ii) and (iii), at the time of such termination (A) all of the other conditions set forth in Article VIII have been satisfied or validly waived (except for those conditions that by their terms must be satisfied at the Closing, provided that such conditions would have been so satisfied if the Closing would have occurred) and (B) the Company and the Selling Investors are not in breach in any material respect of its obligations under this Section 9.3Agreement or Selling Investor Support Agreement, all costs as applicable, in any manner that shall be the proximate cause of the failure of any of the conditions referred to in clause (i) above or the imposition of the Restraint in clause (ii) above or the imposition of any remedies (x) other than Permitted Restrictions or (y) unless such remedy is part of an agreement between Parent and expenses its Subsidiaries and a Governmental Authority, as applicable, then Parent shall pay to the Company a fee equal to $300,000,000 (the “Regulatory Termination Fee”), by wire transfer on the second Business Day following the date of termination of this Agreement. In no event shall Parent be required to pay the Regulatory Termination Fee on more than one occasion. (b) All Expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement will Transactions shall be paid by the party incurring such expense; providedExpenses, howeverwhether or not the Mergers or any other Transaction is consummated, that the costs and expenses of except Expenses incurred in connection with filing, printing and mailing of the Joint Proxy Statement, Registration Statement and all the Consent Solicitation Statement (including filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will fees) shall be borne equally by Parent and the Company. (b) In the event that this Agreement is terminated: (i) (x) by the Company Board or the Parent Board pursuant to Section 8.1(e)Parent, or by the Parent Board pursuant to Section 8.1(f), and (y) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company Mergers or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative other Transaction is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); then, in the case of a termination pursuant to (1) Section 9.3(b)(i), the Company shall pay to Parent an amount equal to $150,000,000 (the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), The parties hereto acknowledge and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges agree that the agreements contained in this Section 9.3 9.03(a) are an integral part of the transactions contemplated by this Agreement Transactions, and that, without these agreements, the other party parties hereto would not enter into this Agreement. Accordingly; accordingly, if a party Parent fails promptly to pay the amounts due pursuant to this Section 9.3 Regulatory Termination Fee, and, in order to obtain such payment, the other party Company commences a suit that results in a judgment against the first party Parent for the amounts set forth in this Section 9.3Regulatory Termination Fee, the first party will Parent shall pay to the other party Company its costs and expenses (including attorneys’ fees and expenses) in connection with such suit, in each case, together with interest on the amounts amount of the Regulatory Termination Fee, as applicable, from the date such payment was required to be made until the date of payment at the prime rate set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported thereinJournal, in another authoritative source selected by the party entitled to such amounts) effect on the date such payment was required to be made made. Each party further acknowledges that the Regulatory Termination Fee is not a penalty, but rather is a reasonable amount that will compensate the receiving party in the circumstances in which such payment is payable for the efforts and resources expended and opportunities forgone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions contemplated hereby, which amounts would otherwise be impossible to calculate with precision. (d) Subject to the proviso at the end of this sentence, in the event the Regulatory Termination Fee is required to be paid and is paid to the Company pursuant to Section 9.03(a), such payment of the Regulatory Termination Fee shall constitute liquidated damages and be the sole and exclusive monetary remedy of the Company and its Subsidiaries and the Company’s and its Subsidiaries’ respective current or future stockholders, employees, directors, officers or Affiliates (collectively, the “Company Related Parties”) against Parent, First Merger Sub and Second Merger Sub and their respective current, former or future Representatives (collectively, the “Parent Related Parties”) for all losses, damages, costs or expenses in respect of this Agreement (or if the termination thereof) or the Transactions (or the failure of such transactions to occur for any reason or for no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is availablereason) plus 250 basis pointsor any breach of any covenant or agreement or otherwise in respect of this Agreement or any oral representation made or alleged to be made in connection herewith, and including reasonable fees upon payment of the Regulatory Termination Fee, none of the Parent Related Parties shall have any further monetary liability or obligation relating to or arising out of this Agreement or the Transactions, and related expenses none of collectionthe Company, its Subsidiaries or any other Company Related Party shall seek to recover any other monetary damages; provided, however, that (x) Section 7.19(c) shall survive any such termination and (y) in the event of any Intentional Breach by Parent, First Merger Sub or Second Merger Sub prior to such termination, the Company shall be entitled to the payment of the Regulatory Termination Fee (to the extent owed pursuant to Section 9.03(a)) and to seek any damages (including, for the avoidance of doubt, damages of the type referred to in Section 11.05(ii)), to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Regulatory Termination Fee paid by Parent).

Fees and Expenses. (a) Except as provided set forth in Section 8.10(b), in the event this Section 9.3Agreement is terminated, all costs Shared Technologies and Fairchild shall bear their respective expenses incurred in connection con- nection with the Merger, including, without limitation, the preparation, execution and performance of this Agreement and the transactions contemplated by this Agreement will be paid by the party incurring such expense; providedhereby, however, that the costs and all fees and expenses of printing investment bankers, finders, brokers, agents, representa- tives, counsel and mailing accountants, except that the Joint Proxy Statementfees and expenses of CS First Boston shall be shared equally by Shared Technologies and Fairchild. If the Merger occurs, then the Surviving Corporation shall be responsible, and reimburse Fairchild, for all filing of such expenses incurred by Shared Technol- ogies and other fees paid to the SEC or under the HSR Act Fairchild in connection with the Merger, will Merger (but ▇▇▇▇▇▇▇▇▇'▇ expenses shall only be borne equally by Parent and the CompanySurviving Cor- poration to the extent set forth in Schedule 8.10). (b) In the event that If this Agreement is terminated: (i) (x) by the Company Board or the Parent Board terminated pursuant to Section 8.1(eSec- tion 10.1(d), (e) or by the Parent Board pursuant to Section 8.1(f(h), and (y) a proposal for an Alternative Transaction with respect to then Shared Technologies shall promptly, but in no event later than the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known next business day after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, pay Fairchild, in immedi- ately available funds, the Company or amount of any and all fees and expenses incurred by Fairchild (including, but not limited to, fees and expenses of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction ▇▇▇▇▇▇▇▇▇'▇ counsel, investment banking fees and expenses and printing expenses) in connection with this Agreement, the Merger and the other transactions contem- plated hereby and, in addition, if such termination is consummated; (ii) by the Parent Board pursuant to Section 8.1(h10.1(h), a fee of $5,000,000. If this Agreement is terminated pursuant to Section 10.1(f) and a proposal for an Alternative Transaction with respect or (i) or pursuant to Section 10.1(c) solely due to the Company has been made failure of Fairchild to sat- isfy the Company condition in Section 9.2(d) or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known obtain tenders and consents from at least 51% of the outstanding principal amount of ▇▇▇▇▇▇▇▇▇'▇ 12<% Senior Notes due 1999 as contemplated by Schedule 9.1, then Fairchild shall promptly, but in no event later than the next business day after the date of such termi- nation, pay Shared Technologies, in immediately available funds, the amount of any and all fees and expenses incurred by Shared Technologies (including, but not limited to, fees and expenses of Shared Technologies' counsel, investment banking fees and expenses and printing expenses) in connection with this Agreement Agreement, the Merger and prior to the other transactions contem- plated hereby and in addition, if such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board is pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); then, in the case of a termination pursuant to (1) Section 9.3(b)(i10.1(i), the Company shall pay to Parent an amount equal to a fee of $150,000,000 (the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%5,000,000. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other party would not enter into this Agreement. Accordingly, if a party fails promptly to pay the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party interest on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collection.

Fees and Expenses. (a) Except as otherwise provided in this Section 9.3, all costs and expenses incurred in connection with this Agreement and Expenses shall be paid by the Party incurring such Expenses, whether or not the Mergers are consummated; provided that the Parties will share equally any Form S-4 filing fees as may be required to consummate the transactions contemplated by this Agreement will be paid by the party incurring such expense; provided, however, that the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the CompanyAgreement. (b) In the event that this Agreement is terminatedthat: (i) (xA) this Agreement is terminated by the Company Board or the Parent Board CCI pursuant to Section 8.1(e), 9.1(d)(i) (CMOF Terminating Breach) or by the Parent Board CCI or CMOF pursuant to Section 8.1(f), 9.1(b)(i) (Outside Date) (and (y) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting such termination CMOF would not have been entitled to terminate this Agreement pursuant to Section 8.1(g9.1(c)(iii) (without giving effect CCI Failure to Close)) or Section 9.1(b)(iii) (Failure to Obtain Stockholder Approval), (B) after the date hereof and prior to the notice and cure provisions breach or failure to perform giving rise to such right of termination, a bona fide Acquisition Proposal (with, for all purposes of this Section 9.3(b)(i), all percentages included in the definition of “Acquisition Proposal” shall be increased to 50%) has been publicly announced, disclosed or otherwise communicated to the CMOF Board (or any committee thereof); or ) or any Person shall have publicly announced an intention (ivwhether or not conditional) by the Company Board pursuant to Section 8.1(k); thenmake such an Acquisition Proposal (and, in the case of a termination pursuant to Section 9.1(b)(iii) (1) Section 9.3(b)(iFailure to Obtain Stockholder Approval), such Acquisition Proposal or publicly proposed or announced intention shall have been made prior to the Company shall pay to Parent an amount equal to $150,000,000 CMOF Stockholders Meeting (the "Company Termination Fee"or any adjournment or postponement thereof)), and (C) within 12 months following such termination, CMOF enters into a definitive written agreement providing for the implementation of any Acquisition Proposal or any Acquisition Proposal is consummated; (ii) this Agreement is terminated by CMOF pursuant to Section 9.1(c)(ii) (Superior Proposal); or (iii) this Agreement is terminated by CCI pursuant to Section 9.1(d)(ii) (Adverse Recommendation Change/Other Company Actions); then CMOF shall pay, as directed by CCI, the Termination Payment. Payment of the Termination Payment pursuant to Section 9.3(b) shall be made by wire transfer of same day funds to an the account or accounts designated by ParentCCI as follows: (i) in the case of Section 9.3(b)(i), upon within the earlier of (A) three Business Days after the entry into a definitive agreement in respect of the Acquisition Proposal referred to occur in clause (B) of Section 9.3(b)(i), and (B) concurrently with the consummation of such Alternative Transaction and Acquisition Proposal; (ii) in the execution case of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay prior to Parent an amount equal or concurrently with termination of this Agreement pursuant to the Company Termination Fee, which payment shall be made within two business days after such termination Section 9.1(c)(ii) (Superior Proposal); and (3iii) in the case of Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days three Business Days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes termination of this Agreement pursuant to Section 9.3(b9.1(d)(ii) (Adverse Recommendation Change/Other Company Actions), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) For the avoidance of doubt, any payment made by CMOF under Section 9.3(b) shall be payable only once with respect to Section 9.3(b), and not in duplication, even though such payment may be payable under one or more provisions hereof. In the event that this Agreement is terminated: (i) (x) by CCI shall receive full payment of the Parent Board or the Company Board Termination Payment pursuant to Section 8.1(e9.3(b), the receipt of the Termination Payment (and the costs and expenses contemplated by Section 9.3(d)) shall be deemed to be liquidated damages and shall be the CCI Parties’ sole and exclusive remedy for any and all losses or damages suffered or incurred by the Company Board pursuant to Section 8.1(gCCI Parties or any of their respective Affiliates or Representatives in connection with this Agreement (and the termination hereof), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of transactions contemplated by this Agreement (and prior to such termination (whether the abandonment thereof) or not conditional and whether or not withdrawn) and (z) within 12 months after any matter forming the basis for such termination, Parent enters into any definitive agreement providing for any Alternative Transaction and CMOF and its Affiliates and Representatives shall have no further liability, whether pursuant to a claim at Law or in equity, to the CCI Parties or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction of their respective Affiliates or Representatives in connection with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at termination hereof), the time of the Parent Stockholders Meeting entitled to terminate transactions contemplated by this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(iiabandonment thereof) or Section 9.3(c)(iv), Parent shall pay to any matter forming the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after basis for such termination, by wire transfer and none of same day funds the CCI Parties or any of their respective Affiliates or Representatives shall be entitled to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent bring or maintain any Action against CMOF or any of its Subsidiaries enters into any definitive agreement providing Affiliates or Representatives for any Alternative Transaction damages or any Alternative Transaction is consummated. For purposes equitable relief arising out of or in connection with this Section 9.3(cAgreement (and the termination hereof), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%transactions contemplated by this Agreement (and the abandonment thereof) or any matters forming the basis for such termination. (d) Each party of the Parties acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement Agreement, and that, that without these agreements, the other party Parties would not enter into this Agreement. Accordingly, if a party fails promptly In the event that the CMOF Parties shall fail to pay the amounts due pursuant to Termination Payment when due, the CMOF Parties shall (i) reimburse CCI for all reasonable costs and expenses actually incurred or accrued by CCI (including reasonable fees and expenses of counsel) in connection with the collection under and enforcement of this Section 9.3 and9.3, and (ii) if, in order to obtain such paymentany payment due to CCI pursuant to Section 9.3(b), the other party CCI commences a suit an Action that results in a judgment against the first party a CMOF Party for the amounts payments set forth in this Section 9.3, the first party will CMOF Parties shall pay to the other party CCI its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees) in connection with such Action, together with interest on the amounts set forth in this Section 9.3 such amount at a rate per annum equal to the three-month LIBOR (as reported prime rate published in The the Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) effect on the date such payment was required to be made through the date of payment (collectively, the “Recovery Costs”). (e) If the CMOF Parties become obligated to pay the Termination Payment plus the Recovery Costs, if any, under this Section 9.3, then, if requested by CCI, the CMOF Parties shall deposit into escrow an amount in cash equal to the Termination Payment plus the Recovery Costs, if any, with an escrow agent selected by CCI, after reasonable consultation with the CMOF Parties, and pursuant to a written escrow agreement (the “Escrow Agreement”) reflecting the terms set forth in this Section 9.3(e) and otherwise reasonably acceptable to CMOF and the escrow agent. The payment or deposit into escrow of the Termination Payment plus the Recovery Costs, if any, shall be made by the CMOF Parties in accordance with the timing set forth in Section 9.3(b) or, at CCI’s reasonable request, promptly after receipt of notice from CMOF that the Escrow Agreement has been executed by the parties thereto. The Escrow Agreement shall provide that the Termination Payment and the Recovery Costs, if any, in escrow or the applicable portion thereof shall be released to CCI on an annual basis based upon the delivery by CCI to the escrow agent of any one (or a combination) of the following: (i) a letter from CCI’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to CCI without causing CCI to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code for the applicable taxable year of CCI determined as if no quotation for threethe payment of such amount did not constitute income described in Sections 856(c)(2)(A)-(I) or 856(c)(3)(A)-(I) of the Code (such income, “Qualifying REIT Income”), in which case the escrow agent shall release to CCI such maximum amount stated in the accountant’s letter; (ii) a letter from CCI’s counsel indicating that CCI received a private letter ruling from the IRS holding that the receipt by CCI of the Termination Payment would either constitute Qualifying REIT Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to CCI the remainder of the Termination Payment; or (iii) a letter from CCI’s counsel indicating that CCI has received a tax opinion from CCI’s outside counsel or accountant, respectively, to the effect that the receipt by CCI of the Termination Payment should either constitute Qualifying REIT Income or should be excluded from gross income within the meaning of Section 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to CCI the remainder of the Termination Payment. The CMOF Parties agree to cooperate in good faith to amend this Section 9.3(e) at the reasonable request of CCI in order to (A) maximize the portion of the Termination Payment that may be distributed to CCI hereunder without causing CCI to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (B) improve CCI’s chances of securing the favorable private letter ruling from the IRS described in this Section 9.3(e), or (C) assist CCI in obtaining the favorable tax opinion from its outside counsel or accountant described in this Section 9.3(e). The Escrow Agreement shall provide that CCI shall bear all costs and expenses under the Escrow Agreement and that the funds will be deposited into a non-month LIBOR is available for such dateinterest bearing account. The CMOF Parties shall not be a party to the Escrow Agreement and shall not bear any liability, on cost or expense resulting directly or indirectly from the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collectionEscrow Agreement.

Fees and Expenses. (a) Except as otherwise provided in this Section 9.3, all costs fees and expenses incurred in connection with this Agreement Agreement, the Mergers and the other transactions contemplated by this Agreement will hereby shall be paid by the party incurring such expense; providedfees or expenses, however, that whether or not the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the CompanyMergers are consummated. (b) In the event that this Agreement is terminatedthat: (i) (xI)(x) this Agreement is terminated by the Company or Parent pursuant to Section 9.1(b)(i) or by Parent pursuant to Section 9.1(c)(i), and after the date hereof and (in the case of termination pursuant to Section 9.1(c)(i)) prior to the breach giving rise to such right of termination, a Company Acquisition Proposal (with, for all purposes of this Section 9.3(b), all percentages included in the definition of “Company Acquisition Proposal” increased to 50%) has been announced, disclosed, or otherwise communicated or made known (whether or not publicly) to the Company Board or made known publicly to the Parent Board pursuant to Section 8.1(e)Company’s stockholders, or by the Parent Board pursuant to Section 8.1(f), and (y) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or any Person shall have publicly announced an intention (whether or not conditional) to make such a proposal Company Acquisition Proposal, or (y) this Agreement is terminated by Company or Parent pursuant to Section 9.1(b)(iii), and prior to the Company Shareholder Meeting, a Company Acquisition Proposal has been publicly announced announced, disclosed, or otherwise communicated or made known to the Company Board or to the Company’s stockholders or any Person shall have publicly announced, disclosed or otherwise communicated or made known an intention (whether or not conditional) to make such a Company Acquisition Proposal, and in each such case in this clause (y), such Company Acquisition Proposal or intention has otherwise become not been irrevocably withdrawn publicly known at least five (5) Business Days prior to the Company Shareholder Meeting, and (II) within twelve (12) months after the date of this Agreement and prior to such termination (whether referred to in this Section 9.3(b), a transaction in respect of a Company Acquisition Proposal is consummated or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company or any of its Subsidiaries enters into any a definitive agreement providing for any Alternative Transaction or any Alternative Transaction in respect of a Company Acquisition Proposal that is later consummated; (ii) this Agreement is terminated by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereofSections 9.1(c)(ii); or (iviii) this Agreement is terminated by the Company Board pursuant to Section 8.1(k9.1(d)(ii); then, in the case of a termination pursuant to (1) Section 9.3(b)(i)any such event, the Company shall pay to Parent an amount equal to $150,000,000 (the "Company Termination Fee"; it being understood that in no event shall Company be required to pay the Company Termination Fee on more than one occasion. Subject to Section 9.3(d), payment of the Company Termination Fee shall be made by wire transfer of same day funds to an the account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account accounts designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) consummation of any transaction contemplated by the Parent Board pursuant to Section 8.1(j); thena Company Acquisition Proposal, in the case of a termination Company Termination Fee payable pursuant to (1) Section 9.3(c)(i9.3(b)(i), Parent shall pay (ii) as promptly as reasonably practicable after termination (and, in any event, within two (2) Business Days thereof), in the case of a Company Termination Fee payable pursuant to Section 9.3(b)(ii), and (iii) at the time of termination, in the case of a Company Termination Fee payable pursuant to Section 9.3(b)(iii) and as a condition to the effectiveness of such termination, as set forth in Section 9.1(d)(ii). Notwithstanding anything in this Agreement to the contrary, except in the case of fraud or willful and material breach as expressly set forth in Section 9.2 and except as set forth in the provisos at the end of this sentence, in the event that the Company an amount equal Termination Fee becomes payable, then payment to $90,000,000 (Parent of the "Parent Company Termination Fee"), by wire transfer Fee and any Enforcement Expenses shall be Parent’s sole and exclusive remedy as liquidated damages for any and all losses or damages of same day funds to an account designated by any nature against the Company, upon the earlier to occur Company Subsidiaries and each of their respective former, current and future directors, trustees, officers, employees, agents, general and limited partners, managers, members, stockholders, Affiliates and assignees and each former, current or future director or trustee, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or assignee of any of the consummation foregoing in respect of this Agreement, any agreement executed in connection herewith, and the transactions contemplated hereby and thereby, including for any loss or damage suffered as a result of the termination of this Agreement, the failure of the Mergers to be consummated or for a breach or failure to perform hereunder (whether intentionally, unintentionally, or otherwise) or otherwise, and upon payment of such Alternative Transaction Company Termination Fee no Company Party shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby and the execution thereby. (c) Each of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, the other party would not enter into this Agreement. Accordingly, if a party If the Company fails promptly to pay the any amounts due pursuant to this Section 9.3 9.3(b), and, in order to obtain such payment, the other party Parent commences a suit that results in a judgment against the first party Company for the amounts set forth in Section 9.3(b) or this Section 9.39.3(c), the first party will Company shall pay to the other party Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amounts set forth in Sections 9.3(b), from the date of termination of this Section 9.3 Agreement at a rate per annum equal to the three-month LIBOR (prime rate as reported published in The the Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) effect on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such datecollectively, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collection“Enforcement Expenses”).

Fees and Expenses. (a) Except as provided in this Section 9.36.06 and Section 6.09, all costs fees and expenses incurred in connection with this Agreement the Merger and the transactions contemplated by this Agreement will other Transactions shall be paid by the party incurring such expense; providedfees or expenses, however, that whether or not the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the CompanyMerger is consummated. (b) In The Company shall pay to Parent: (1) the event that this Agreement is terminated: Termination Fee if: (i) (x) by the Company Board or the Parent Board terminates this Agreement pursuant to Section 8.1(e8.01(f), or by the ; (ii) Parent Board terminates this Agreement pursuant to Section 8.1(f8.01(c) or Section 8.01(d) (other than pursuant to Section 8.01(d)(i) in connection with a Non-Intervening Event Adverse Recommendation Change), and ; or (yiii) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known (A) after the date of this Agreement and prior to such the termination of this Agreement pursuant to Article VIII, any Person makes a Company Takeover Proposal or amends a Company Takeover Proposal made after January 1, 2009, (whether B) this Agreement is terminated by either (x) the Company or not conditional and whether Parent pursuant to Section 8.01(b)(i) or, (y) by the Company or not withdrawn) Parent pursuant to Section 8.01(b)(iii), and (zC) in any such case, within 12 ten and one-half (10 ½) months after the date of such termination, the Company or any of its Subsidiaries Company Subsidiary enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction Acquisition Agreement with respect to the any Company has been made Takeover Proposal or consummates any Company Takeover Proposal (provided, that any Company Takeover Proposal referred to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination in clause (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); then, in the case of a termination pursuant to (1) Section 9.3(b)(iA), the Company shall pay to Parent an amount equal to $150,000,000 (the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000or (C) need not be the same Company Takeover Proposal); provided, by wire transfer of same day funds to an account designated by Parentthat, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(bclause (iii), references to 20% in the definition of "Alternative Transaction" will term “Company Takeover Proposal” to “20%” shall be deemed to be references to “50%”; and (2) a fee in an amount equal to $10,000,000 (the “Withdrawal Fee”), if Parent terminates this Agreement pursuant to Section 8.01(d)(i) in connection with a Non-Intervening Event Adverse Recommendation Change. Any Termination Fee or Withdrawal Fee due under this Section 6.06(b) shall be paid by wire transfer of same-day funds on the date of termination of this Agreement (except that in the case of termination pursuant to clause (1)(iii) of the first sentence of this Section 6.06(b) above, such payment shall be made on the date of execution of such Acquisition Agreement or, if earlier, consummation of such transaction). (c) In If the event that this Agreement is terminated: (i) (x) by the Parent Board Termination Fee or the Company Board Withdrawal Fee is payable pursuant to Section 8.1(e), or 6.06(b) (other than following a termination of this Agreement by the Company Board Parent pursuant to Section 8.1(g8.01(c)), and (y) a proposal for an Alternative Transaction with respect then the Company shall pay to Parent, forthwith upon demand by Parent, the Parent has been made to Expenses incurred by Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after through the date of termination of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction in the case that the Withdrawal Fee is consummated; or (ii) by the Company Board paid pursuant to Section 8.1(i) 6.06(b)(2), in amount not to exceed $2,000,000, and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after in the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by case that the Parent Board or the Company Board Termination Fee is payable pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof6.06(b)(1); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal not to exceed $90,000,000 (the "Parent Termination Fee"), 1,000,000) by wire transfer of same same-day funds to an account one or more accounts designated by Parent. “Parent Expenses”, as used in this Agreement, shall include all reasonable and documented out of pocket fees and expenses (including all fees and expenses of counsel, accountants, investment bankers, financing sources, hedging counterparties, experts, consultants and other Representatives) of Parent and Sub and their respective Affiliates in connection with or related to the CompanyTransactions, upon including the earlier to occur authorization, preparation, negotiation and performance of this Agreement, the consummation of such Alternative Transaction Financing Commitments and the execution of such agreement, as applicable, other transactions and documents contemplated hereby or thereby (2) including the Financing or any alternative financing obtained pursuant to Section 9.3(c)(ii) or Section 9.3(c)(iv6.09), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer due diligence investigation of same day funds to an account designated by the Company and (B) $45,000,000the Company Subsidiaries in connection therewith, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the all other party would not enter into this Agreement. Accordingly, if a party fails promptly to pay the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay matters relating to the other party interest on the amounts set forth in this Section 9.3 at a rate per annum equal Closing; provided, however, that Parent Expenses shall not include any fees or expenses incurred prior to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) orDecember 29, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collection2009.

Fees and Expenses. (a) Except as otherwise provided in this Section 9.310.3, all costs fees and expenses incurred in connection with this Agreement Agreement, the Merger and the transactions contemplated by this Agreement will other Contemplated Transactions shall be paid by the party incurring such expense; providedfees or expenses, howeverwhether or not the Merger is consummated, except that the costs and expenses of incurred in connection with the filing, printing and mailing of the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act SEC, in each case in connection with the MergerMerger (other than attorneys’ fees, will accountants’ fees and related expenses), shall be borne shared equally by Parent Acquiror and the Company. (b) In the event that If this Agreement is terminated: (i) (x) terminated by the Company Board or the Parent Board Acquiror pursuant to Section 8.1(e10.1(g) or Section 10.1(i), or by the Parent Board Company pursuant to Section 8.1(f10.1(h), and (y) a proposal for an Alternative Transaction with respect to then the Company has been made shall pay to Acquiror, within two (2) Business Days after such termination, the Company or its stockholders or amount of $1,662,858 (the “Termination Fee”) by wire transfer of immediately available funds to such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known account as Acquiror shall designate. (c) If, after the date of this Agreement and prior to such the termination of this Agreement, a bona fide Acquisition Proposal shall have been made known to senior management of the Company or has been made directly to its stockholders generally or any Person shall have publicly announced (whether or not conditional and whether or not withdrawn) an Acquisition Proposal with respect to the Company and (zi) thereafter this Agreement is terminated by Acquiror pursuant to Section 10.1(b) as a result of a material breach; and (ii) within 12 six (6) months after such terminationtermination the Company shall enter into a definitive written agreement with any Person (other than Acquiror and its Affiliates) with respect to such Acquisition Proposal, the Company shall pay to Acquiror, within ten (10) Business Days after the execution of such definitive agreement, the Termination Fee by wire transfer of immediately available funds to such account as Acquiror shall designate; provided, however, that for purposes of this paragraph, Acquisition Proposal has the meaning ascribed thereto in Section 12.1(m), except that references in that Section to “15%” shall be replaced by “50%.” (d) Notwithstanding anything to the contrary in this Agreement, in the circumstances in which the Termination Fee is or becomes payable pursuant to Section 10.3(b), Acquiror’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction Affiliates with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement facts and prior circumstances giving rise to such termination (whether or not conditional and whether or not withdrawn); (iii) by payment obligation shall be payment of the Parent Board or the Company Board Termination Fee pursuant to Section 8.1(d) 10.3(b), and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to except as provided in Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); then, 10.2 in the case of a termination pursuant to (1) Section 9.3(b)(i), the Company shall pay to Parent an amount equal to $150,000,000 (the "Company Termination Fee"), by wire transfer fraud or willful breach of same day funds to an account designated by Parentthis Agreement, upon the earlier to occur of the consummation payment in full of such Alternative Transaction and the execution amount, none of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent Acquiror or any of its Subsidiaries enters into Affiliates nor any definitive agreement providing for other Person shall have any Alternative Transaction rights or claims against the Company or any Alternative Transaction is consummated. For purposes of its Affiliates (whether at law, in equity, in contract, in tort or otherwise) under or relating to this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of Agreement or the transactions contemplated by this Agreement and that, without these agreements, the other party would hereby. The Company shall not enter into this Agreement. Accordingly, if a party fails promptly be required to pay the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party interest Termination Fee on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collectionmore than one occasion.

Fees and Expenses. (a) Except as provided in this Section 9.3paragraph (b) below, all costs and expenses incurred in connection with this Agreement and the consummation of the transactions contemplated by this Agreement will hereby shall be paid by the party incurring such expense; provided, however, that the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the Companyexpenses. (b) In the event that If this Agreement is terminated: (i) (x) by the Company Board at a time when Buyer or the Parent Board pursuant to Section 8.1(e), or by the Parent Board pursuant to Section 8.1(f), and (y) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction Acquisition is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to in accordance with Section 8.1(g8.1(b), Section 8.1(e)(i) hereof (without giving effect solely due to the notice and cure provisions thereof); or (iv) by Minimum Condition not having been met at the Company Board pursuant to Section 8.1(k); then, in the case of a termination pursuant to (1) Section 9.3(b)(i), the Company shall pay to Parent an amount equal to $150,000,000 (the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation time of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(iitermination) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (38.1(e)(ii) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, ifand, within 12 twelve (12) months after of such termination, the Company enters into an agreement, arrangement or understanding (including a letter of intent) with respect to or consummates any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes Acquisition Proposal (provided, however, if prior to the time of delivery of the written notice of such termination in accordance with Section 8.2: (A) but in no event later than ten (10) days prior to the date of termination of this Agreement, (1) the Company had given Buyer written notice of a breach of any representation, warranty or covenant of Buyer or Acquisition in this Agreement in accordance with Section 9.3(b8.1(d)(ii) and (2) such breach had not been cured by Buyer or Acquisition in accordance with Section 8.1(d)(ii); or (B) the Company was properly entitled to terminate this Agreement in accordance with Section 8.1(d)(iii), references to 20% and in the definition case of either clause (A) or (B), the Company was not in material breach of this Agreement, then the Company shall not be obligated to pay, and Buyer shall not be entitled to receive, any Expense Reimbursement or Termination Fee pursuant to this Section 9.1(b)(i)); (ii) pursuant to Section 8.1(d)(i), Section 8.1(e)(iii) or Section 8.1(e)(iv); then Buyer shall be entitled to receive from the Company (in accordance with Section 9.1(c) below) (A) reimbursement for the out-of-pocket expenses of Buyer and Acquisition (including printing fees, filing fees and fees and expenses of their legal and financial advisors and all fees and expenses payable to any financing sources) related to this Agreement, the Shareholders Agreement, the transactions contemplated hereby and thereby and any related financing up to a maximum of $750,000 (such reimbursement amount, the "Alternative Transaction" will Expense Reimbursement") and (B) an amount equal to $3,500,000 (such amount, the "Termination Fee"); provided, however, that in no event shall more than one (1) Termination Fee or one (1) Expense Reimbursement be deemed paid to be references to 50%Buyer by the Company. (c) In Any amounts owing by the event that this Agreement is terminatedCompany to Buyer pursuant to Section 9.1(b) above shall be paid as follows: (i) if either the Company, on the one hand, or Buyer or Acquisition, on the other hand, shall have terminated this Agreement (xbut only to the extent such terminating party is entitled to do so) by the Parent Board or the Company Board pursuant to the circumstances contemplated by Section 8.1(e)9.1(b)(i) above, or then such amounts shall be paid by the Company Board pursuant to Section 8.1(g)Buyer by wire transfer of immediately available funds on the date on which the Company shall have entered into an agreement, and arrangement or understanding (yincluding a letter of intent) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after any Acquisition Proposal or, if earlier, the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into consummation of any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; orAcquisition Proposal; (ii) if the Company shall have terminated this Agreement (but only to the extent it is entitled to do so) pursuant to the circumstances contemplated by Section 9.1(b)(ii) above, then such amounts shall be paid by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after Buyer by wire transfer of immediately available funds on the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn);as a condition precedent for such termination; and (iii) if Buyer or Acquisition shall have terminated this Agreement (but only to the extent it is entitled to do so) pursuant to the circumstances contemplated by Section 9.1(b)(ii) above, then such amounts shall be paid by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), Buyer by wire transfer of same day immediately available funds to an account designated by no later than the Company, upon next Business Day succeeding the earlier to occur of the consummation date of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party The Company acknowledges that the agreements contained Termination Fee and Expense Reimbursement provided for in this Section 9.3 9.1 are an integral part of the transactions contemplated by this Agreement and not a penalty, and that, without these agreementsthe Termination Fee and Expense Reimbursement provided for above, the other party Buyer and Acquisition would not enter into this Agreement. AccordinglyFurthermore, if a party fails promptly to pay the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth nothing in this Section 9.39.1 shall be deemed to limit any liability of any party for any breach in any material respect of any representations, the first party will pay to the other party interest on the amounts set forth warranties or covenants contained in this Section 9.3 at a rate per annum equal Agreement that occurs prior to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses termination of collectionthis Agreement.

Fees and Expenses. (a) Except as provided below, all fees and expenses incurred in connection with the Transactions contemplated by this Section 9.3Agreement shall be paid by the party incurring such fees or expenses, whether or not the Transactions contemplated by this Agreement are consummated. Without limiting the foregoing, the Company shall pay all costs and expenses in connection with the printing and mailing of the Proxy Statement as well as all SEC filing fees related to the Proxy Statement and the Schedule 13E-3, and Parent and Opco shall pay all costs and expenses in connection with any securities filings made by such parties (other than the Schedule 13E-3). (b) The Company shall pay to Parent or its designee a fee in the amount of $13,000,000 (the “Company Termination Fee”) which shall be inclusive of out-of-pocket fees and expenses reasonably incurred by Parent, Opco, Holdings and Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement will be paid by Transactions (including fees and other amounts (including fees and other payments based on a percentage of the party incurring such expense; providedCompany Termination Fee or the proposed aggregate Merger Consideration) payable to all banks, howeverinvestment banking firms and other financial institutions, that the costs and expenses of printing their respective agents and mailing the Joint Proxy Statementcounsel, and all filing fees of counsel, accountants, financial printers, experts and other fees paid consultants to the SEC or under the HSR Act in connection with the MergerParent, will be borne equally by Parent Opco, Merger Sub and the Company. (b) In the event that this Agreement is terminated: (iany affiliate thereof) (x) by the Company Board or the Parent Board pursuant to Section 8.1(e“Expenses”), or by the Parent Board pursuant to Section 8.1(f), and (y) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); then, in the case of a termination pursuant to (1) Section 9.3(b)(i), the Company shall pay to Parent an amount equal to $150,000,000 (the "Company Termination Fee")cash, by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day immediately available funds to an account designated by Parent or such designee, if: (i) the Company terminates this Agreement pursuant to Section 8.01(d)(ii) or Parent terminates this Agreement pursuant to Section 8.01(c)(iii); (ii) Parent terminates this Agreement pursuant to Section 8.01(c)(i) (so long as the breach or failure to perform giving rise to such right of termination was a willful and knowing breach or failure to perform) or Section 8.01(c)(ii); or (iii) the Company or Parent terminates this Agreement pursuant to Section 8.01(b)(i), but only if (A) a Company Takeover Proposal shall have been publicly disclosed or disclosed to the Company prior to the Outside Date, and (B) $105,000,000within 6 months after such termination the Company (or any Company Subsidiary) enters into a definitive agreement with respect to a Superior Company Proposal with the person or group (or any affiliate of such person or any member of such group) that made the Company Takeover Proposal referred to in clause (A) above, or consummates a transaction that constitutes a Superior Company Proposal with such person or group (or any affiliate of such person or any member of such group). The Company shall pay to Parent or its designee in cash, by wire transfer of same day immediately available funds to an account designated by Parent, if, within 12 months after Parent or such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: designee: (i) (x) by the Parent Board or an amount necessary to reimburse Parent, Opco, Holdings and Merger Sub for their Expenses, up to a maximum amount of $1,000,000, if the Company Board or Parent terminates this Agreement pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g8.01(b)(iii), and (yii) a proposal for an Alternative Transaction the Company Termination Fee less the amount of Expenses paid pursuant to clause (i) of this sentence if the Company or Parent terminates this Agreement pursuant to Section 8.01(b)(iii), but with respect to Parent has been made to Parent or its stockholders or such this clause (ii) only if (A) a proposal or an intention to make such a proposal has Company Takeover Proposal shall have been publicly announced or has otherwise become publicly known after the date of this Agreement and disclosed prior to such termination (whether or not conditional and whether or not withdrawn) the Company Stockholders Meeting, and (zB) within 12 months after such termination, Parent termination the Company (or any Company Subsidiary) enters into any a definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent to, or its stockholders or such consummates, a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after Company Takeover Proposal. Any amounts due under this Section 6.06(b) shall be paid on the date of termination of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, except that in the case of a termination pursuant to (1x) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 clause (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur iii) of the consummation first sentence of this Section 6.06(b) and (y) clause (ii) of the immediately preceding sentence, such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after on the date of execution of such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other party would not enter into this Agreement. Accordingly, if a party fails promptly to pay the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party interest on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported thereinearlier, in another authoritative source selected by the party entitled to consummation of such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collectiontransactions).

Fees and Expenses. (a) Except as otherwise provided in this Section 9.3, all costs fees and expenses incurred in connection with this Agreement Agreement, the Merger and the other transactions contemplated by this Agreement will hereby shall be paid by the party incurring such expense; providedfees or expenses, however, that whether or not the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the CompanyMerger is consummated. (b) In the event that this Agreement is terminatedthat: (i) (x) by the Company Board or the Parent Board pursuant to Section 8.1(e), or by the Parent Board pursuant to Section 8.1(f), and (yA) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination Acquisition Proposal (whether or not conditional and conditional) or intention to make a Company Acquisition Proposal (whether or not withdrawnconditional) shall have been made directly to the Company’s shareholders or otherwise publicly disclosed or otherwise communicated or made known to senior management of the Company or the Company Board and (zB) this Agreement is thereafter terminated by the Company or Parent pursuant to Section 9.1(b)(i) (if the Company Shareholder Approval has not theretofore been obtained) or Section 9.1(b)(iii) or by Parent pursuant to Section 9.1(c)(i), then if within 12 months after such termination, termination the Company or any of its Subsidiaries enters into any executes a definitive agreement providing for with respect to, or consummates a transaction contemplated by, any Alternative Transaction Company Acquisition Proposal (which, in each case, need not be the same Company Acquisition Proposal that shall have been made, publicly disclosed or any Alternative Transaction is consummated;communicated prior to termination hereof) then the Company shall pay the Company Termination Fee (defined in subsection 9.3(b)(ii) below) on the date of such execution or consummation, whichever occurs first; or (ii) this Agreement is terminated by the (A) Parent Board pursuant to Section 8.1(h9.1(c)(ii) and a proposal for an Alternative Transaction with respect to or 9.1(c)(iii), or (B) the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof9.1(d)(ii); or (iv) by the Company Board pursuant to Section 8.1(k); , then, in the case of a termination pursuant to (1) Section 9.3(b)(i)any such event, the Company shall pay to Parent an amount equal to a termination fee of $150,000,000 3.0 million (the "“Company Termination Fee"”), it being understood that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion. (c) Payment of the Company Termination Fee shall be made by wire transfer of same day funds to an the account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account accounts designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to provided in Section 8.1(f) (without giving effect to the notice and cure provisions thereof9.3(b)(i); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination Company Termination Fee payable pursuant to (1) Section 9.3(c)(i9.3(b)(i), Parent shall pay to the Company an amount equal to $90,000,000 and (the "Parent Termination Fee")ii) as promptly as reasonably practicable after termination (and, by wire transfer of same day funds to an account designated by the Companyin any event, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iiithereof), in the case of termination by Parent shall pay pursuant to the Company an amount equal to (ASection 9.1(c)(ii) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated or Section 9.1(c)(iii) or by the Company and (B) $45,000,000, by wire transfer of same day funds pursuant to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c9.1(d)(ii), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party The Company acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, the other party Parent would not enter into this Agreement. Accordingly; accordingly, if a party the Company fails promptly to pay the any amounts due pursuant to this Section 9.3 9.3, and, in order to obtain such payment, the other party Parent commences a suit that results in a judgment against the first party Company for all or a portion of the amounts set forth in this Section 9.3, the first party will Company shall pay to Parent the other party costs and expenses (including reasonable attorneys’ fees and expenses) of Parent in connection with such suit, together with interest on the amounts set forth in this Section 9.3 from the date payment became due until the date payment is made, at a rate per annum equal to the three-month LIBOR (as reported prime rate published in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required became due. In the event that Parent commences such a suit and such suit results in a judgment against Parent (such that no Company Termination Fee is due), the Parent shall pay to the Company the costs and expenses (including reasonable attorneys’ fees and expenses) of the Company in connection with such suit. (e) The parties agree that the payment of the Company Termination Fee shall be the sole and exclusive remedy available to Parent with respect to this Agreement in the event any such payment becomes due and payable and is paid, and, upon payment of the Company Termination Fee, the Company and its Subsidiaries and affiliates (and its and their respective directors, officers, employees, stockholders and representatives) shall have no further liability to Parent under this Agreement; provided, however, that the Company shall not be relieved or released from any liabilities or damages arising out of its willful and material breach of this Agreement; and, provided, further, that the aggregate amount of any damages determined by a court to be made (or if no quotation for three-month LIBOR is available for such date, on payable to Parent pursuant to the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses foregoing proviso shall be reduced by the amount of collectionany Company Termination Fee previously paid to Parent pursuant to this Section 9.3.

Fees and Expenses. (a) Except as otherwise provided in this Section 9.36.06, all costs fees and expenses incurred in connection with this Agreement Agreement, the Merger and the other transactions contemplated by this Agreement will hereby shall be paid by the party incurring such expense; providedfees or expenses, however, that whether or not the costs and expenses of printing and mailing Offer or the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the CompanyMerger is consummated. (b) In the event that this Agreement is terminatedthat: (i) (xthis Agreement is terminated by Parent pursuant to Section 8.01(e) or by the Company Board or the Parent Board pursuant to Section 8.1(e8.01(f), or by the Parent Board pursuant to Section 8.1(f), and (y) a proposal for an Alternative Transaction with respect prior to the Company has Share Acceptance Date; or (ii) (A) prior to the Share Acceptance Date, a Takeover Proposal shall have been made to the Company or its shall have been made directly to the stockholders of the Company generally or such a proposal or an intention to make such a proposal has been publicly announced or has shall have otherwise become publicly known after the date of known, (B) thereafter, this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) terminated by the Parent Board pursuant to Section 8.1(h8.01(c) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders Section 8.01(g) or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d8.01(b)(i), or Section 8.01(b)(iii) and the Company Board is not at the time by reason of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); thenMinimum Condition not having been satisfied, in the case of a termination pursuant to (1) Section 9.3(b)(i), the Company shall pay to Parent an amount equal to $150,000,000 (the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3C) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to within twelve (A12) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after any such termination, the Company enters into a binding agreement directly relating to the consummation of a transaction contemplated by any definitive agreement providing for any Alternative Transaction Takeover Proposal or any Alternative Transaction transaction contemplated by any Takeover Proposal is consummated. For , then the Company shall pay Parent the Company Termination Fee by wire transfer of same-day funds as follows: (1) in the case of a payment required by clause (i) above, the Company Termination Fee on the date of termination of this Agreement and (2) in the case of a payment required by clause (ii) above, the Company Termination Fee on the earlier of the date of entry into a binding agreement or the date of consummation referred to in clause (ii)(C) above (for purposes of this Section 9.3(b6.06(b), the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.02(a)(i), except that all references to 20% in the definition of "Alternative Transaction" will fifteen percent (15%) therein shall be deemed to be references to 50thirty-five percent (35%)). (c) In the event that this Agreement is terminatedterminated by Parent or by the Company pursuant to: (i) (xA) Section 8.01(b)(i) for the failure to satisfy any of the Offer Conditions set forth in paragraphs (a), (b) or (e) of Annex II due to the failure to receive any required consent or clearance under applicable Antitrust Laws from a Governmental Entity or due to any action by any Governmental Entity to prevent the Parent Board consummation of the Offer or the Company Board pursuant Merger as violative of applicable Antitrust Laws or (B) Section 8.01(b)(ii) due to the denial of any approval required under applicable Antitrust Laws or the taking of any action by any antitrust or competition Governmental Entity to prevent the consummation of the Offer or the Merger as violative of applicable Antitrust Laws under circumstances where no other right to terminate exists under Section 8.1(e8.01(b)(ii) that does not relate to Antitrust Laws, if, in the case of each of clauses (A) and (B), at the time of such termination, all other Offer Conditions, including under paragraphs (a) or (e) of Annex II that do not relate to Antitrust Laws (other than those conditions that by their terms are to be satisfied at the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after Expiration Date but which conditions would be satisfied if the Expiration Date were the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination), Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummatedhave been satisfied; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i8.01(h), then Parent shall pay to the Company an amount equal (or to $90,000,000 (any Affiliate of the "Company as directed by the Company) the Parent Termination Fee"), Fee by wire transfer of same day funds to an account designated as follows: (1) in the case of a termination by Parent, on the date of termination of the Agreement and (2) in the case of termination by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreementas promptly as reasonably practicable (and, as applicablein any event, within two (2) Section 9.3(c)(iibusiness days following such termination). Notwithstanding anything in this Agreement to the contrary, if (x) Parent or Merger Sub fail to receive the proceeds of the Debt Financing (or any Alternative Financing) or Section 9.3(c)(iv(y) the parties are unable to satisfy any of the Offer Conditions relating to Antitrust Laws, in either case specified in clause (x) or (y), whether or not as a result of Parent’s or Merger Sub’s breach of any of their respective representations, warranties or covenants under this Agreement, then the payment of the Parent shall pay Termination Fee to the Company an amount equal (or to any Affiliate of the Company as directed by the Company) in accordance with this Section 6.06(c) shall be the sole and exclusive remedy, in law or equity, of the Company and its Affiliates against Parent, Merger Sub, their respective Affiliates and any of their respective former, current or future stockholders, directors, officers, Affiliates or agents (including any of their Representatives) or persons providing financing (collectively, the “Parent Related Parties”) for any loss or damage suffered as a result of the breach of any representation, warranty or covenant contained in this Agreement by Parent or Merger Sub or the failure of Parent or Merger Sub to accept for payment and pay for shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer or to consummate the Merger, and upon payment of the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Fee in accordance with this Section 9.3(c)(iii6.06(c), none of the Parent Related Parties shall pay have any further liability or obligation to the Company an amount equal or any other person relating to or arising out of this Agreement or the transactions contemplated by this Agreement (Aexcept that Parent and Merger Sub shall also be obligated with respect to the penultimate sentence of Section 6.02, Section 6.06(d) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (BSection 6.15); provided that this Section 6.06(c) $45,000,000, by wire transfer of same day funds to an account designated by shall not limit the Company, if, within 12 months after such termination, Parent or any ’s right to seek specific performance of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Parent’s and Merger Sub’s obligations hereunder as provided in Section 9.3(c9.10(a), references but only to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%extent permitted thereby. (d) Each party of the Company and Parent acknowledges and agrees that the agreements contained in this Section 9.3 6.06(b) and Section 6.06(c), as applicable, are an integral part of the transactions contemplated by this Agreement Agreement, that each of the Company Termination Fee and the Parent Termination Fee is liquidated damages in a reasonable amount that will compensate Parent and Merger Sub, on the one hand, or the Company, on the other hand, as applicable, in the circumstances where such fee is payable, and that, without these agreements, neither Parent nor the other party Company would not enter have entered into this Agreement. Accordingly; accordingly, if a party the Company fails promptly to pay the amounts any amount due pursuant to this Section 9.3 6.06(b) or Parent fails promptly to pay any amount due pursuant to Section 6.06(c), and, in order to obtain such payment, Parent or the other party Company, as the case may be, commences a suit that results in a judgment against the first party Company for the amounts set forth in this Section 9.3Company Termination Fee or Parent for the Parent Termination Fee, as applicable, the first party will against which such judgment has been rendered shall pay to the other party such other party’s costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amounts set forth amount of the Company Termination Fee or the Parent Termination Fee, as applicable, from the date such payment was required to be made until the date of payment at the prime rate of Citibank N.A. in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) effect on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collectionmade.

Fees and Expenses. (a) Except as otherwise provided in this Section 9.3, all costs and expenses incurred in connection with this Agreement and Expenses shall be paid by the Party incurring such fees or expenses, whether or not the Merger is consummated; provided that the Parties will share equally any Form S-4 filing fees as may be required to consummate the transactions contemplated by this Agreement will be paid by the party incurring such expense; provided, however, that the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the CompanyAgreement. (b) In the event that this Agreement is terminated: (i) (x) by the Company Board CCIT III or the Parent Board CMFT pursuant to Section 8.1(e)9.1(b)(i) or Section 9.1(b)(iii) and, (A) prior to the Stockholders Meeting, an Acquisition Proposal with respect to CCIT III has been publicly announced, disclosed or by otherwise communicated to CCIT III’s stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make such an Acquisition Proposal (and such Acquisition Proposal or intention shall not have been publicly withdrawn on a bona fide basis without qualification at least three (3) Business Days prior to the Parent Board Outside Date (with respect to a termination pursuant to Section 8.1(f9.1(b)(i)) or the Stockholders Meeting (with respect to a termination pursuant to Section 9.1(b)(iii))) and (B) within twelve (12) months after the date of such termination, (I) a transaction in respect of an Acquisition Proposal with respect to CCIT III is consummated, (II) CCIT III enters into a definitive agreement in respect of an Acquisition Proposal and such Acquisition Proposal is actually consummated thereafter, or (III) CCIT III recommends to stockholders of CCIT III or fails to recommend against an Acquisition Proposal structured as a tender offer or exchange offer and such Acquisition Proposal is actually consummated thereafter (with, for all purposes of clauses (I), (II), and (yIII) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior Section 9.3(b)(i), all percentages included in the definition of “Acquisition Proposal” increased to such termination 50%), then CCIT III shall pay to CMFT (whether or not conditional and whether or not withdrawn1) the Termination Payment and (z2) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement providing up to one hundred thirty thousand dollars ($130,000) as reimbursement for any Alternative Transaction or any Alternative Transaction is consummatedCMFT’s Expenses; (ii) by the Parent Board CCIT III pursuant to Section 8.1(h9.1(c)(ii), then CCIT III shall pay to CMFT (A) an amount equal to the Termination Payment (provided that, if such termination occurs no later than ten (10) Business Days after the Go Shop Period End Time (or, in the event of timely delivery of a CCIT III Change Notice, the negotiation period contemplated by Section 7.3(f)(ii)), then no Termination Payment will be payable by CCIT III) and a proposal (B) up to one hundred thirty thousand dollars ($130,000) as reimbursement for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn)CMFT’s Expenses; (iii) by the Parent Board or the Company Board CMFT pursuant to Section 8.1(d9.1(d)(ii), then CCIT III shall pay to CMFT (A) the Termination Payment (provided that, if such termination occurs no later than ten (10) Business Days after the Go Shop Period End Time (or, in the event of timely delivery of a CCIT III Change Notice, the negotiation period contemplated by Section 7.3(f)(ii)), then no Termination Payment will be payable by CCIT III) and the Company Board is not at the time of the Company Stockholders Meeting entitled (B) up to terminate this Agreement pursuant to Section 8.1(gone hundred thirty thousand dollars ($130,000) (without giving effect to the notice and cure provisions thereof); oras reimbursement for CMFT’s Expenses; (iv) by the Company Board CCIT III pursuant to Section 8.1(k); then, in the case of a termination pursuant to (1) Section 9.3(b)(i9.1(c)(i), the Company then CMFT shall pay to Parent CCIT III an amount equal up to seven hundred fifty thousand dollars ($150,000,000 (the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, 750,000) as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing reimbursement for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummatedCCIT III’s Expenses; or (iiv) by the Company Board CMFT pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i9.1(d)(i), Parent then CCIT III shall pay to the Company CCIT III an amount equal up to one hundred thirty thousand dollars ($90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, 130,000) as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing reimbursement for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%CMFT’s Expenses. (d) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other party would not enter into this Agreement. Accordingly, if a party fails promptly to pay the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party interest on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collection.

Fees and Expenses. (a) Except Whether or not the Merger is consummated, except as otherwise specifically provided in this Section 9.3herein, all costs and expenses incurred in connection with the Offer, this Agreement and the transactions contemplated by this Agreement will shall be paid by the party incurring such expense; provided, however, that the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the Companyexpenses. (b) In the event that this Agreement is terminated: (i) (x) by the Company Board or the Parent Board terminated pursuant to Section 8.1(e), (f) or by the Parent Board (g) (B) or pursuant to Section 8.1(f)8.1(c) following the termination of the Offer by the Purchaser as a result of the failure to satisfy any of the conditions set forth in paragraph (c) (1) of Annex I, and (y) a proposal for an Alternative Transaction with respect to then the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to shall simultaneously with such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); then, in the case of a termination pursuant by Parent, within one business day thereafter) reimburse Parent for the out-of-pocket fees and expenses of Parent and the Purchaser (including printing fees, filing fees and fees and expenses of its legal and financial advisors) related to the Offer, this Agreement, the transactions contemplated hereby and any related financing up to a maximum of $25 million (1) Section 9.3(b)(icollectively "Expenses"), and at the Company shall same time pay to Parent an amount equal to a termination fee of $150,000,000 220 million (the "Company Termination Fee"), ) in immediately available funds by wire transfer of same day funds to an account designated by Parent, upon . In the earlier event that (x) this Agreement is terminated pursuant to occur Section 8.1(g)(A) or pursuant to Section 8.1(c) following the termination of the consummation Offer by the Purchaser as a result of the failure to satisfy any of the conditions set forth in paragraph (c)(2), (3) or (4) of Annex I, and (y) within twelve months of the date of such Alternative termination, the Company shall enter into an agreement for an Acquisition Transaction with any person other than Parent and the execution of its affiliates, then, prior to or simultaneously with entering into such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay Parent the Termination Fee and reimburse Parent and the Purchaser for their Expenses, in each case in immediately available funds by wire transfer to Parent an amount equal designated by Parent. Without limiting the foregoing, in the event this Agreement is terminated pursuant to Section 8.1(c) as a result of the Company Termination Feefailure to satisfy the conditions set forth in paragraph (e) of Annex I, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), then the Company shall pay to Parent an amount equal to promptly (A) $45,000,000 within two and in any event with one business days day after such termination, ) reimburse Parent for Expenses in immediately available funds by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that The prevailing party in any legal action undertaken to enforce this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting provision hereof shall be entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, recover from the other party would not enter into this Agreement. Accordingly, if a party fails promptly to pay the amounts due pursuant to this Section 9.3 and, costs and expenses (including attorneys' and expert witness fees) incurred in order to obtain connection with such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party interest on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collectionaction.

Fees and Expenses. (a) Except as provided in this Section 9.36.7, all costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement will be paid by the party incurring such expense; provided, however, that the costs United and Continental shall share equally (i) all fees and expenses of in relation to the printing and mailing filing of the Form S-4 and the printing, filing and distribution of the Joint Proxy Statement, Statement and all (ii) any filing and other fees paid to the SEC or under the HSR Act required in connection with the MergerMerger pursuant to the HSR Act or any other competition Law, will be borne equally by Parent other than, in the case of clause (i) or clause (ii), attorneys’ and the Companyaccountants’ fees and expenses. (b) In the event that this Agreement is terminated: (i) (x) by the Company Board or the Parent Board United pursuant to Section 8.1(e8.1(h), ; (ii) by Continental or by the Parent Board United pursuant to Section 8.1(f), 8.1(d) and (yx) a proposal for an Alternative a Competing Transaction with respect to the Company has been made to the Company Continental or its stockholders or such a proposal (whether or not conditional) or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) the Continental Stockholders Meeting, and (zy) (1) within 12 months after such termination, the Company Continental or any of its Subsidiaries enters into any definitive agreement providing for any Alternative a Competing Transaction or (2) (A) within 12 months after such termination, any Alternative Person commences a tender offer or exchange offer with respect to Continental (or any successor to Continental or any parent of Continental) and (B) within 24 months after such termination a Competing Transaction is consummated;; provided, however, for purposes of this clause (ii), unless a Competing Transaction described in clauses (x) and (y) is made and consummated by the same Person (or any Affiliate thereof), any reference in the definition of Competing Transaction to 10% shall be deemed to be a reference to 35%; or (iiiii) by the Parent Board Continental or United pursuant to Section 8.1(h8.1(e) and (x) a proposal for an Alternative a Competing Transaction with respect to the Company has been made to the Company Continental or its stockholders or such a proposal (whether or not conditional) or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to the End Date, (y) the Continental Stockholders Meeting did not occur at least 5 Business Days prior to the End Date and (z) (1) within 12 months after such termination, Continental or any of its Subsidiaries enters into any definitive agreement providing for a Competing Transaction or (2) (A) within 12 months after such termination, any Person commences a tender offer or exchange offer with respect to Continental (or any successor to Continental or any parent of Continental) and (B) within 24 months after such termination (whether or not conditional and whether or not withdrawn); a Competing Transaction is consummated; provided, however, for purposes of this clause (iii), unless a Competing Transaction described in clauses (x) and (y) is made and consummated by the Parent Board same Person (or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions any controlled Affiliate thereof); or (iv) by , any reference in the Company Board pursuant definition of Competing Transaction to Section 8.1(k)10% shall be deemed to be a reference to 35%; then, in the case of Continental will pay United a termination pursuant to (1) Section 9.3(b)(i), the Company shall pay to Parent an amount fee equal to $150,000,000 175,000,000 (the "Company “Termination Fee"”), by wire transfer of same day funds to an account designated by ParentUnited, in the case of a termination referred to in Section 6.7(b)(ii) or Section 6.7(b)(iii), upon the earlier earliest to occur of the consummation of such Alternative Transaction and the execution of such agreementevents referred to in Section 6.7(b)(ii)(y) or Section 6.7(b)(iii)(z), as applicable, (2) and in the case of a termination by United referred to in Section 9.3(b)(ii) or Section 9.3(b)(iv6.7(b)(i), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days Business Days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board Continental pursuant to Section 8.1(e8.1(i), ; (ii) by United or by the Company Board Continental pursuant to Section 8.1(g), 8.1(c) and (yx) a proposal for an Alternative a Competing Transaction with respect to Parent has been made to Parent United or its stockholders or such a proposal (whether or not conditional) or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) the United Stockholders Meeting, and (zy) (1) within 12 months after such termination, Parent United or any of its Subsidiaries enters into any definitive agreement providing for any Alternative a Competing Transaction or (2) (A) within 12 months after such termination, any Alternative Person commences a tender offer or exchange offer with respect to United (or any successor to United or any parent of United) and (B) within 24 months after such termination a Competing Transaction is consummated; provided, however, for purposes of this clause (ii), unless a Competing Transaction described in clauses (x) and (y) is made and consummated by the same Person (or any controlled Affiliate thereof), any reference in the definition of Competing Transaction to 10% shall be deemed to be a reference to 35%; or (iiiii) by the Company Board United or Continental pursuant to Section 8.1(i8.1(e) and (x) a proposal for an Alternative a Competing Transaction with respect to Parent has been made to Parent United or its stockholders or such a proposal (whether or not conditional) or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to the End Date, (y) the United Stockholders Meeting did not occur at least 5 Business Days prior to the End Date and (z) (1) within 12 months after such termination, United or any of its Subsidiaries enters into any definitive agreement providing for a Competing Transaction or (2) (A) within 12 months after such termination, any Person commences a tender offer or exchange offer with respect to United (or any successor to United or any parent of United) and (B) within 24 months after such termination (whether or not conditional and whether or not withdrawn); a Competing Transaction is consummated; provided, however, for purposes of this clause (iii), unless a Competing Transaction described in clauses (x) and (y) is made and consummated by the Parent Board same Person (or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions any controlled Affiliate thereof); or (iv) by , any reference in the Parent Board pursuant definition of Competing Transaction to Section 8.1(j)10% shall be deemed to be a reference to 35%; then, in United will pay Continental the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by Continental, in the Companycase of termination referred to in Section 6.7(c)(ii) or (iii), upon the earlier earliest to occur of the consummation of such Alternative Transaction and the execution of such agreementevents referred to in Section 6.7(c)(ii)(y) or Section 6.7(c)(iii)(z), as applicable, (2) and in the case of termination by Continental referred to in Section 9.3(c)(ii) or Section 9.3(c)(iv6.7(c)(i), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days Business Days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges that the agreements contained in this Section 9.3 6.7 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other party would not enter into this Agreement. Accordingly, if a party fails promptly to pay the amounts due pursuant to this Section 9.3 6.7 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first non-paying party for the amounts set forth in this Section 9.36.7, the first non-paying party will pay to the other party interest interest, from the date such payment was required to be made, on the amounts set forth in this Section 9.3 6.7 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points. The parties acknowledge and agree that the Termination Fee shall not constitute either a penalty or liquidated damages, and the right of a party to receive, or the receipt of, the Termination Fee shall not limit or otherwise affect such party’s right to specific performance as provided in Section 9.10, such party’s rights as set forth in Section 8.2 or Section 9.7 or any other remedies that may be available for breaches of this Agreement, including reasonable fees and related expenses breaches of collectionSection 5.5 of this Agreement.

Fees and Expenses. (a) Except as provided in this Section 9.3Unless specified otherwise herein, all costs and expenses incurred in connection with this Agreement Agreement, the Transactions, the solicitation of stockholder approvals and all other matters related to the transactions contemplated by this Agreement will Transactions shall be paid by the party incurring such expense; providedexpenses, howeverwhether or not the Mergers or any other Transaction is consummated, that except as otherwise set forth in this Agreement. (a) If this Agreement shall be validly terminated by the costs and expenses of printing and mailing Parent Entities pursuant to (i) Section 9.01(d)(i), or (ii) by the Joint Proxy StatementCompany pursuant to Section 9.01(e)(i), and all filing and other fees paid then OpCo shall pay (or cause to be paid) to the SEC Parent Entities (or under their designees) $288,500,000 (the HSR Act “Company Termination Fee”) in connection accordance with the Merger, will be borne equally by Parent and the CompanySection 9.03(b). (b) In the event that the Company Termination Fee becomes payable by the Company Entities pursuant to Section 9.03(a), it shall be paid to the Parent Entities (or the Parent Entities’ designees) by OpCo (or its designee) in immediately available funds within two Business Days after the termination of this Agreement; provided that, notwithstanding the foregoing, if the Company Termination Fee becomes payable pursuant to Section 9.03(a), the Company Termination Fee shall be payable concurrently with the consummation of such Superior Proposal. The payment to the Parent Entities (or the Parent Entities’ designees) of the Company Termination Fee shall be the sole and exclusive remedy of the Parent Related Parties for any loss suffered by the Parent Related Parties as a result of the failure of the Transactions to be consummated, and, upon such payment in accordance with this Section 9.03, the Company Related Parties shall not have any further liability or obligation, relating to or arising out of this Agreement is terminated:or the Transactions. (c) If this Agreement shall be validly terminated (i) (x) by the Company Board or the Parent Board pursuant to Section 8.1(e9.01(e)(ii), Section 9.01(e)(iii) or by the Parent Board pursuant to Section 8.1(f), and (y9.01(e)(iv) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Company or Parent Board Entity pursuant to Section 8.1(h9.01(b) and a proposal for an Alternative Transaction with respect to (if the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior events giving rise to such termination (whether right are caused by or not conditional and whether resulted from, in any material respect, a Parent Entity’s breach of any representations or not withdrawn); (iiiwarranties or failure to satisfy any agreements or covenants under this Agreement) by the Parent Board or Section 9.01(c) at a time when the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to could terminate this Agreement pursuant to Section 8.1(g9.01(e)(ii)) or Section 9.01(e)(iii), then the Parent Entities shall pay to OpCo (without giving effect or its designee) the amount of $705,000,000 (the “Parent Termination Fee”) in accordance with Section 9.03(d). (d) In the event the Parent Termination Fee becomes payable by the Parent Entities pursuant to the notice and cure provisions thereof); or this Section 9.03, it shall be paid to OpCo (ivor its designee) by the Company Board pursuant Parent Entities in immediately available funds within two Business Days after such termination. Notwithstanding anything to Section 8.1(k); then, the contrary set forth in the case of a termination pursuant to this Agreement (1) Section 9.3(b)(iincluding this Article IX), the Company shall pay Entities expressly acknowledge and agree that (i) the Company Entities’ right to receive the Parent an amount equal Termination Fee pursuant to $150,000,000 (the "Company Termination Fee"and in accordance with Section 9.03(c), by wire transfer (ii) the amounts payable to OpCo and the Company Subsidiaries pursuant to Section 7.12(c), (iii) the amounts payable to OpCo and the Company Subsidiaries pursuant to the penultimate sentence of same day funds this Section 9.03(d) (subject to an account designated by Parentthe Expense Cap), upon (iv) the earlier Company Entities’ right to occur seek specific performance or other equitable relief solely in accordance with, and subject to the limitations in, this Agreement (including Section 10.08) and the Equity Commitment Letter, (v) the rights of the consummation Company Entities to bring any claims or otherwise pursue any Action in accordance with, and subject to the limitations in, the Guarantee and (vi) the rights of such Alternative Transaction the Company Entities to bring any claims or otherwise pursue any Action under the Confidentiality Agreement and the execution Voting Agreement shall constitute the sole and exclusive remedies of such agreementthe Company Entities, as applicablethe Company Subsidiaries, their respective Affiliates or any of their respective former, current or future general or limited partners, stockholders, equityholders, members, managers, directors, officers, employees, agents or Affiliates (2collectively, the “Company Related Parties”) Section 9.3(b)(iiagainst (A) the Parent Entities and the Merger Subs or Section 9.3(b)(iv(B) the Equity Investors and the Parent Entities’ and the Equity Investors’ respective Affiliates or any of their or their respective Affiliates’ respective former, current or future directors, officers, employees, general or limited partners, mangers, members, direct or indirect equityholders, controlling persons, attorneys, assignees, agents, representatives or representatives of any of the foregoing, or any former, current or future estates, heirs, executors, administrators, trustees, successors or assigns of any of the foregoing, or any financial institution which provides or is committed to provide financing in connection with the transactions contemplated by this Agreement or any of their respective Affiliates (collectively, the “Parent Related Parties”), for, or with respect to, this Agreement, the Equity Commitment Letter, the Guarantee, the Confidentiality Agreement, the Voting Agreement, the Financings or the transactions contemplated hereby or thereby (including, any breach thereof by the Parent Entities or the Merger Subs), the termination of this Agreement, the failure to consummate the Closing or any claims or actions under applicable Law arising out of any such breach, termination or failure and none of the Company Related Parties shall pay seek to Parent an amount equal recover any other damages or seek any other remedy, whether based on a claim at law or in equity, in contract, tort or otherwise, with respect to any such losses or damages (including in respect of any oral representation made or alleged to be made in connection herewith). Nothing in this Section 9.03(d) will preclude any liability of the Debt Financing Sources or the Preferred Equity Financing Sources to the Company Termination Fee, which payment shall be made within two business days after such termination and Entities (3) Section 9.3(b)(iiifollowing the Closing), the Parent Entities or the Merger Subs under the definitive agreements relating to the Debt Financing or the Preferred Equity Financing or limit the Company Entities (following the Closing), the Parent Entities or the Merger Subs from seeking to recover any such damages or obtain equitable relief from or with respect to any Debt Financing Source or Preferred Equity Investor pursuant to the definitive agreements relating to the Debt Financing or the Preferred Equity Financing. Notwithstanding anything to the contrary herein, other than the obligation of the Parent Entities to pay the Parent Termination Fee and any Additional Obligations in accordance with Section 9.03(c) and this Section 9.03(d) and the respective obligations of the Guarantors under, and pursuant to the terms of, the Guarantee, in no event will any Parent Related Party or any other Person have any liability for monetary damages to the Company Entities or any other Person relating to or arising out of this Agreement or the transactions contemplated by this Agreement. While the Company Entities may pursue both a grant of specific performance pursuant to Section 10.08(a) to cause consummation of the Transactions (including the Mergers) to occur and the payment of the Parent Termination Fee and any Additional Obligations (subject to the Expense Cap), in no event shall pay the Company Entities be entitled to Parent receive both (i) an amount equal order for specific performance or any other equitable remedy of the type contemplated by Section 10.08(a) to cause consummation of the Transactions (Aincluding the Mergers) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent occur and (Bii) $105,000,000, by wire transfer of same day funds the Parent Termination Fee if payable pursuant to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b)9.03; provided, references to 20% that, for the avoidance of doubt, nothing in the definition of "Alternative Transaction" will this Agreement shall be deemed to be references prohibit the Company Entities from pursuing (or obtaining) specific performance of the Parent Entities’ obligations hereunder or other equitable relief that does not require the Merger Subs to 50%. (c) In cause the event that Closing to occur and, to the extent this Agreement is subsequently terminated: (i) (x) by , the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time payment of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) Termination Fee and any Additional Obligations (without giving effect subject to the notice and cure provisions thereofExpense Cap); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur . Each of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party parties hereto acknowledges that the agreements contained in this Section 9.3 9.03 are an integral part of the transactions contemplated by this Agreement hereby, and that, without these agreements, the other party Company Entities would not enter into this Agreement. Accordingly, if a party fails promptly OpCo or the Parent Entities fail to pay the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against timely manner the first party for Company Termination Fee or the amounts Parent Termination Fee, as applicable, then OpCo shall pay (or cause to be paid) to the Parent Entities (or their designees) or the Parent Entities shall pay (or cause to be paid) to OpCo (or its designee), as applicable, interest on such amount from and including the date payment of such amount was due to but excluding the date of actual payment at the prime rate set forth in this Section 9.3, the first party will pay to the other party interest on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) effect on the date such payment was required to be made made, plus 2% per annum (together with the obligations of the Parent Entities under Section 7.12(c), the “Additional Obligations”). The Company Entities and the Parent Entities hereby agree that the aggregate amount of the Additional Obligations payable by the Parent Entities or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is availableCompany Entities (as applicable) plus 250 basis points, and including reasonable fees and related expenses of collectionpursuant to this Section 9.03(d) shall not exceed $20,000,000 (the “Expense Cap”).

Fees and Expenses. (a) Except as otherwise provided in this Section 9.310.3, all costs fees and expenses incurred in connection with this Agreement Agreement, the Merger and the transactions contemplated by this Agreement will other Contemplated Transactions shall be paid by the party incurring such expense; providedfees or expenses, howeverwhether or not the Merger is consummated, except that the costs and expenses incurred in connection with the filing of printing and mailing the Joint Proxy Registration Statement, and all filing and other fees paid to the SEC or under the HSR Act SEC, in each case in connection with the MergerMerger (other than the Company’s attorneys’ fees, will accountants’ fees and related expenses), shall be borne equally paid by Parent the Acquiror and the expenses incurred in connection with printing and mailing of the Proxy Statement shall be paid by the Company. (b) In the event that If this Agreement is terminated:terminated by Acquiror pursuant to Section 10.1(b), then the Company shall pay to Acquiror, within ten (10) Business Days after such termination, the amount of $4.7 million (the “Termination Fee”) by wire transfer of immediately available funds to such account as Acquiror shall designate. (ic) (x) If this Agreement is terminated by the Company Board or the Parent Board pursuant to Section 8.1(e10.1(c) or Section 10.1(j) (or Section 10.1(e), if at the time of, or by the Parent Board prior to, such termination pursuant to Section 8.1(f10.1(e), and (ythe Company would have been entitled to terminate this Agreement pursuant to Section 10.1(c) a proposal for an Alternative Transaction with respect or Section 10.1(j)), then Acquiror shall pay to the Company has been made Company, within ten (10) Business Days after such termination, the Termination Fee by wire transfer of immediately available funds to such account as the Company shall designate. (d) If this Agreement is terminated by the Company pursuant to Section 10.1(h) or its stockholders or by Acquiror pursuant to Section 10.1(g), then the Company shall pay to Acquiror, within two (2) Business Days after such a proposal or an intention termination, the Termination Fee by wire transfer of immediately available funds to make such a proposal has been publicly announced or has otherwise become publicly known account as Acquiror shall designate. (e) If, after the date of this Agreement and prior to such the termination of this Agreement, a bona fide Acquisition Proposal shall have been made known to senior management of the Company or has been communicated directly to the Company’s stockholders generally or any Person shall have publicly announced (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction Acquisition Proposal with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of and (i) thereafter this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) is terminated by the Parent Board or the Company Board Acquiror pursuant to Section 8.1(d10.1(i) and (ii) within six (6) months after such termination the Company Board is not at the time of the Company Stockholders Meeting entitled shall enter into a definitive written agreement with any Person (other than Acquiror and its Affiliates) with respect to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); then, in the case of a termination pursuant to (1) Section 9.3(b)(i)such Acquisition Proposal, the Company shall pay to Parent an amount equal to $150,000,000 Acquiror, within three (3) Business Days after the "Company execution of such definitive agreement, the Termination Fee"), Fee by wire transfer of same day immediately available funds to an such account designated as Acquiror shall designate; provided, however, that for purposes of this paragraph, Acquisition Proposal has the meaning ascribed thereto in Section 12.1(k), except that references in that Section to “15%” shall be replaced by Parent, upon “50%.” (f) All payments made pursuant to this Section 10.3 shall constitute liquidated damages and except as provided in Section 10.2 in the earlier to occur case of fraud or willful and material breach of the consummation Agreement, the receipt thereof shall be the sole and exclusive remedy of the receiving party against the party making such Alternative Transaction payment, its Affiliates and their respective directors, officers and stockholders for any claims arising out of or relating in any way to this Agreement or the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv)transactions contemplated herein. Further, the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall not be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other party would not enter into this Agreement. Accordingly, if a party fails promptly required to pay the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party interest Termination Fee on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collectionmore than one occasion.

Fees and Expenses. (a) Except as provided in this Section 9.3below, all costs fees and expenses incurred in connection with this Agreement the Merger and the other transactions contemplated by this Agreement will shall be paid by the party incurring such expense; providedfees or expenses, however, that the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC whether or under the HSR Act in connection with the Merger, will be borne equally by Parent and the Companynot such transactions are consummated. (b) In BAC shall pay (provided that if BAC fails to pay when due, Biovail will pay when due on behalf of BAC) to Valeant a fee of $100,000,000 (the event that this Agreement is terminated“Biovail Termination Fee”) if: (i) (x) by the Company Board or the Parent Board Valeant terminates this Agreement pursuant to Section 8.1(e8.01(e), ; provided that if either Valeant or by the Parent Board Biovail terminates this Agreement pursuant to Section 8.1(f), and (y8.01(b)(iii) a proposal for an Alternative Transaction with respect to the Company has at any time after Valeant would have been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled permitted to terminate this Agreement pursuant to Section 8.1(g8.01(e), this Agreement shall be deemed terminated pursuant to Section 8.01(e) (without giving effect to the notice and cure provisions thereoffor purposes of this Section 6.06(b)(i); or (ivii) (A) prior to the Biovail Stockholders Meeting, a Biovail Takeover Proposal shall have been made to Biovail or shall have been made directly to the stockholders of Biovail generally or shall otherwise become publicly known or any Person shall have publicly announced an intention (whether or not conditional) to make a Biovail Takeover Proposal, (B) this Agreement is terminated by the Company Board pursuant to Section 8.1(k); then, in the case of a termination Biovail pursuant to (1) Section 9.3(b)(i), 8.01(b)(i) and the Company shall pay Biovail Stockholders Meeting has not been held on or prior to Parent an amount equal the fifth Business Day prior to $150,000,000 (the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation date of such Alternative Transaction and the execution of such agreement, as applicable, termination or (2) Section 9.3(b)(ii8.01(b)(iii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3C) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after 12 months of such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company Biovail enters into any a definitive agreement providing for any Alternative Transaction Contract to consummate a Biovail Takeover Proposal or any Alternative Transaction Biovail Takeover Proposal is consummated. For the purposes of this Section 9.3(b)6.06(b)(ii)(C) only, the term “Biovail Takeover Proposal” shall have the meaning assigned to such term in Section 5.02(e) except that all references to “20% in the definition of "Alternative Transaction" will %” therein shall be deemed to be references to 50“40%”. Any Biovail Termination Fee due under this Section 6.06(b) shall be paid by wire transfer of same-day funds (x) in the case of clause (i) above, on the Business Day immediately following the date of termination of this Agreement and (y) in the case of clause (ii) above, on the date of the first to occur of the events referred to in clause (ii)(C) above. (c) In Valeant shall pay to Biovail a fee of $100,000,000 (the event that this Agreement is terminated“Valeant Termination Fee”) if: (i) (x) by the Parent Board or the Company Board Biovail terminates this Agreement pursuant to Section 8.1(e8.01(f), ; provided that if either Valeant or by the Company Board Biovail terminates this Agreement pursuant to Section 8.1(g), and (y8.01(b)(iv) a proposal for an Alternative Transaction with respect to Parent has at any time after Biovail would have been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled permitted to terminate this Agreement pursuant to Section 8.1(f8.01(f), this Agreement shall be deemed terminated pursuant to Section 8.01(f) (without giving effect to the notice and cure provisions thereoffor purposes of this Section 6.06(c)(i); or (ivii) by (A) prior to the Parent Board pursuant Valeant Stockholders Meeting, a Valeant Takeover Proposal shall have been made to Section 8.1(j); thenValeant or shall have been made directly to the stockholders of Valeant generally or shall otherwise become publicly known or any Person shall have publicly announced an intention (whether or not conditional) to make a Valeant Takeover Proposal, in the case of a termination (B) this Agreement is terminated pursuant to (1) Section 9.3(c)(i), Parent shall pay 8.01(b)(i) and the Valeant Stockholders Meeting has not been held at or prior to the Company an amount equal fifth Business Day prior to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation date of such Alternative Transaction and the execution of such agreement, as applicable, termination or (2) Section 9.3(c)(ii8.01(b)(iv) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3C) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after 12 months of such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries Valeant enters into any a definitive agreement providing for any Alternative Transaction Contract to consummate a Valeant Takeover Proposal or any Alternative Transaction a Valeant Takeover Proposal is consummated. For the purposes of this Section 9.3(c)6.06(c)(ii)(C) only, the term “Valeant Takeover Proposal” shall have the meaning assigned to such term in Section 5.03(e) except that all references to “20% in the definition of "Alternative Transaction" will %” therein shall be deemed to be references to 50“40%”. Any Valeant Termination Fee due under this Section 6.06(c) shall be paid by wire transfer of same-day funds (x) in the case of clause (i) above, on the Business Day immediately following the date of termination of this Agreement and (y) in the case of clause (ii) above, on the date of the first to occur of the events referred to in clause (ii)(C) above. (d) Each party acknowledges Biovail and Valeant acknowledge and agree that the agreements contained in this Section 9.3 Sections 6.06(b) and 6.06(c) are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, the other party neither Valeant nor Biovail would not enter into this Agreement. Accordingly, if a party Biovail fails promptly to pay the amounts amount due pursuant to this Section 9.3 6.06(b) or Valeant fails promptly to pay the amount due pursuant to Section 6.06(c), and, in order to obtain such payment, the other party Person owed such payment commences a suit suit, action or other proceeding that results in a judgment against the first party Judgment in its favor for the amounts set forth in this Section 9.3such payment, the first party will Person owing such payment shall pay to the Person owed such payment its costs and expenses (including attorneys’ fees and expenses) in connection with such suit, action or other party proceeding, together with interest on the amounts set forth amount of such payment from the date such payment was required to be made until the date of payment at the prime rate of JPMorgan Chase Bank, N.A. in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) effect on the date such payment was required to be made (or if made. In no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collectionevent shall either party be obligated to pay more than one termination fee pursuant to this Section 6.06.

Fees and Expenses. (a) Except as otherwise provided in this Section 9.3Section, all costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement will shall be paid by the party incurring such cost or expense; provided, however, that the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the Company. (b) In The Company agrees to pay Parent a fee in immediately available funds equal to $20,000,000 promptly, but in no event later than one business day, after the event that termination of this Agreement is terminated:as a result of the occurrence of any of the events set forth below (a "Trigger Event"): (i) (x) by the Company Board or the Parent Board pursuant to Section 8.1(e)shall have entered into, or by the Parent Board pursuant shall have publicly announced its intention to Section 8.1(f)enter into, and (y) a proposal for an Alternative Transaction agreement or an agreement in principle with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummatedAcquisition Proposal; (ii) by any person or group (as defined in Section 13(d)(3) of the 1934 Act) (other than Parent Board pursuant to Section 8.1(hor any of its affiliates) and a proposal for an Alternative Transaction with respect to shall have become the Company has been made to beneficial owner (as defined in Rule 13d-3 promulgated under the Company ▇▇▇▇ ▇▇▇) of at least 25% of the outstanding Shares or its stockholders shall have acquired, directly or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after indirectly, at least 25% of the date assets of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn)the Company; (iii) any representation or warranty made by the Parent Board Company in, or pursuant to, this Agreement that is qualified as to materiality shall not have been true and correct when made or at any time prior to the consummation of the Offer as if made at and as of such time, or any representation or warranty made by the Company in, or pursuant to, this Agreement that is not so qualified shall not have been true and correct in all material respects when made or at any time prior to the consummation of the Offer as if made at and as of such time, or the Company shall have failed to observe or perform in any material respect any of its obligations under this Agreement; (iv) the Board pursuant to Section 8.1(d) and the Company Board is not at the time of Directors of the Company Stockholders Meeting entitled (or any special committee thereof) shall have withdrawn or materially modified in a manner adverse to terminate Parent or Merger Subsidiary its approval or recommendation of the Offer, the Merger or this Agreement pursuant to Section 8.1(g) or its approval of the entry by Parent and Merger Subsidiary into the Stockholder Option Agreement, in any such case whether or not such withdrawal or modification is required by the fiduciary duties of the Board of Directors (without giving effect to the notice and cure provisions or any special committee thereof); or (ivv) by prior to the Company Board pursuant to Section 8.1(k); then, in purchase of any Shares under the case of a termination pursuant to (1) Section 9.3(b)(i)Offer, the Company shall pay have received any Acquisition Proposal which the Board of Directors has determined is more favorable to Parent an amount equal to $150,000,000 (the "Company Termination Fee")Company's shareholders than the transactions contemplated by this Agreement, whether or not such determination is required by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur fiduciary duties of the consummation Board of such Alternative Transaction and the execution of such agreementDirectors; PROVIDED that, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) if (x) by the Parent Board or the Company Board only Trigger Event having occurred is an event pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), clause (iii) above and (y) a proposal for an Alternative Transaction with respect the breaches of representation or warranty, or failures to Parent has been made to Parent observe or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into perform any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); obligation under clause (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to above (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent individually or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges that aggregate would not have or result in a Material Adverse Effect or prevent or materially delay the agreements contained in this Section 9.3 are an integral part consummation of the transactions contemplated by this Agreement and thator (B) were unintentional, without these agreementsthen the amount of the fee payable by the Company to the Parent under this Section 10.4(b) shall be $5,000,000 instead of $20,000,000. (c) If this Agreement is terminated as a result of the occurrence of a Trigger Event, in addition to any amounts paid or payable by the Company to Parent pursuant to Section 10.4(b), the other party would not enter into this Agreement. AccordinglyCompany shall promptly assume and pay, if a party fails promptly to pay or reimburse Parent for, all fees payable and expenses incurred by Parent (including the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party interest on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collectionits counsel) in connection with this Agreement and the transactions contemplated hereby.

Fees and Expenses. (a) Except as provided set forth in this Section 9.37.3, all costs fees and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement will hereby shall be paid by the party incurring such expenseexpenses, whether or not the Merger is consummated; provided, however, that GT and the costs Company shall share equally all SEC filing fees and printing expenses of incurred in connection with the printing and mailing filing of the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent /Prospectus and the CompanyRegistration Statement (including financial statements and exhibits) and any amendments or supplements thereto. (b) In The Company shall pay GT a fee of $8,000,000 (the event that "Fee"), plus GT's actual, documented and reasonable out-of-pocket expenses relating to the transactions contemplated by this Agreement is terminated:(including but not limited to, fees and expenses of counsel, accountants and financial advisors) ("Expenses"), but in no event shall such Expenses exceed $1,500,000, if any of the following events occurs; provided that no Fee or Expenses shall be payable pursuant to this Section 7.3(b) if this Agreement has been previously terminated and such previous termination did not entitle GT to receive a Fee pursuant to this Section 7.3(b): (i) the termination of this Agreement by the Company pursuant to 7.1(b), if prior to the Final Date (x) by the Company Board or the Parent Board pursuant to Section 8.1(e), or by the Parent Board pursuant to Section 8.1(f), necessary HSR approvals shall have been obtained and (y) a proposal for third party shall have proposed, or it shall have been publicly disclosed that a third party intends to propose, an Alternative Transaction Acquisition Proposal with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company or any of its Subsidiaries enters subsidiaries and within 12 months following such Final Date, the Company shall enter into any definitive an agreement providing for any Alternative Transaction or any Alternative Transaction is consummated;with a third party with respect to a Company Acquisition (as defined below); or (ii) the termination of this Agreement by the Parent Board GT pursuant to Section 8.1(h7.1(d) and as a proposal for result (x) of the failure to obtain the requisite vote of the shareholders of the Company by the Final Date if the Company is in breach of any of its obligations under Section 5.2 or (y) if there shall have occurred an Alternative Transaction Acquisition Proposal with respect to the Company has or any of its subsidiaries which shall have been made to publicly disclosed and not withdrawn, the failure of the shareholders of the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after approve the date of Merger and this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn);at the Company Shareholders' Meeting; or (iii) the termination of this Agreement by the Parent Board or the Company Board GT pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof7.1(f); or (iv) the termination of this Agreement by the Company Board pursuant to Section 8.1(k7.1(g); then, in the case of a termination pursuant to (1) Section 9.3(b)(i), the Company shall pay to Parent an amount equal to $150,000,000 (the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other party would not enter into this Agreement. Accordingly, if a party fails promptly to pay the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party interest on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collection.

Fees and Expenses. (a) Except as otherwise provided in this Section 9.3, all costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement will Expenses shall be paid by the party incurring such expensefees or expenses, whether or not the Merger is consummated; provided, however, provided that the costs and expenses of printing and mailing Parties will share equally any Form S-4 filing fees as may be required to consummate the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally transactions contemplated by Parent and the Companythis Agreement. (b) In the event that this Agreement is terminated: (i) (xA) by the Company Board or the Parent Board SOR pursuant to Section 8.1(e9.1(d)(i) (SOR II Terminating Breach) and after the date hereof and prior to the failure to perform giving rise to such right of termination, an Acquisition Proposal (with, for all purposes of this Section 9.3(b)(i), all percentages included in the definition of “Acquisition Proposal” increased to 50%) has been publicly announced, disclosed or otherwise communicated to the SOR II Board or any Person shall have publicly announced an intention (whether or not conditional) to make such an Acquisition Proposal or (B) by the Parent Board SOR II or SOR pursuant to Section 8.1(f9.1(b)(i) (Outside Date) or Section 9.1(b)(iii) (Failure to Obtain Stockholder Approval), and (y) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and but prior to such termination the Stockholders Meeting, an Acquisition Proposal with respect to SOR II has been publicly announced, disclosed or otherwise communicated to SOR II’s stockholders (and not withdrawn) or any Person shall have publicly announced an intention (whether or not conditional conditional) to make such an Acquisition Proposal, and whether or not withdrawnin either case, within twelve (12) and (z) within 12 months after the date of such termination, the Company a transaction in respect of an Acquisition Proposal with respect to SOR II is consummated or any of its Subsidiaries SOR II enters into any a definitive agreement providing for in respect of an Acquisition Proposal with respect to SOR II that is later consummated, SOR II shall pay to SOR the Full Termination Payment minus any Alternative Transaction or any Alternative Transaction is consummatedamount previously paid pursuant to Section 9.3(b)(vi); (ii) by the Parent Board SOR II pursuant to Section 8.1(h9.1(c)(ii) (Superior Proposal), then SOR II shall pay to SOR an amount equal to (A) the Full Termination Payment or (B) the Go Shop Termination Payment if all of the following conditions are met: (I) delivery of the SOR II Change Notice occurs before the Go Shop Period End Time (or in the case of any Acquisition Proposal received less than five (5) Business Days before the Go Shop Period End Time, not later than five (5) Business Days after the receipt of such Acquisition Proposal) and a proposal for an Alternative Transaction with respect to (II) the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known termination occurs no later than one (1) Business Day after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawnnegotiation period contemplated by Section 7.3(e)(ii); (iii) by the Parent Board or the Company Board SOR pursuant to Section 8.1(d9.1(d)(ii)(A) (Adverse Recommendation Change), then SOR II shall pay to SOR an amount equal to (A) the Full Termination Payment or (B) the Go Shop Termination Payment if all of the following conditions are met: (I) delivery of the SOR II Change Notice occurs before the Go Shop Period End Time (or in the case of any Acquisition Proposal received less than five (5) Business Days before the Go Shop Period End Time, not later than five (5) Business Days after the receipt of such Acquisition Proposal) and (II) the Company Board is not at Adverse Recommendation Change occurs no later than one (1) Business Day after the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to negotiation period contemplated by Section 8.1(g) (without giving effect to the notice and cure provisions thereof7.3(e)(ii); or; (iv) by the Company Board SOR pursuant to Section 8.1(k); then, in the case 9.1(d)(ii)(B) (Violation of a termination pursuant to (1) Section 9.3(b)(iNon-Solicitation Provisions), the Company then SOR II shall pay to Parent SOR an amount equal to $150,000,000 the Full Termination Payment; (the "Company Termination Fee"v) by SOR II pursuant to Section 9.1(c)(i) (SOR Terminating Breach), then SOR shall pay to SOR II up to $3 million to reimburse for SOR II’s Expenses; or (vi) by SOR pursuant to Section 9.1(d)(i) (SOR II Terminating Breach), then SOR II shall pay to SOR up to $3 million to reimburse for SOR’s Expenses. (c) The Parties agree and acknowledge that in no event shall SOR II be required to pay the applicable Termination Payment on more than one occasion. Payment of the Termination Payment shall be made by wire transfer of same day funds to an the account or accounts designated by Parent, upon the earlier to occur of SOR: (i) within two (2) Business Days after the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent any transaction contemplated by an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); thenAcquisition Proposal, in the case of a termination Termination Payment payable pursuant to Section 9.3(b)(i); (1ii) concurrently with termination in the case of a Termination Payment payable pursuant to Section 9.3(c)(i9.3(b)(ii); and (iii) as promptly as reasonably practicable after termination (and, Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee")in any event, by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, within two (2) Business Days thereof), in the case of a Termination Payment payable pursuant to Section 9.3(c)(ii9.3(b)(iii) or Section 9.3(c)(iv9.3(b)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Notwithstanding anything in this Agreement to the contrary, in the event that the Termination Payment becomes payable, then such payment shall be SOR’s and its Affiliates’ sole and exclusive remedy as liquidated damages for any and all losses or damages of any nature against SOR II and its Subsidiaries and their respective Representatives in respect of this Agreement, any agreement executed in connection herewith, and the transactions contemplated hereby and thereby, including for any loss or damage suffered as a result of the termination of this Agreement, the failure of the Merger to be consummated or for a breach or failure to perform hereunder (whether intentionally, unintentionally, or otherwise) or otherwise. (e) Each party of the Parties acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement Agreement, and that, that without these agreements, the other party Parties would not enter into this Agreement. Accordingly, if a party fails promptly In the event that SOR II shall fail to pay the amounts applicable Termination Payment when due, SOR II shall reimburse the SOR for all reasonable costs and expenses actually incurred or accrued by SOR (including reasonable fees and expenses of counsel) in connection with the collection under and enforcement of this Section 9.3. Further, if SOR II fails to timely pay any amount due pursuant to this Section 9.3 9.3(b), and, in order to obtain such the payment, the other party SOR commences a suit that which results in a judgment against the first party SOR II for the amounts payment set forth in this Section 9.3, the first party will SOR II shall pay to the other party SOR its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees) in connection with such suit, together with interest on the amounts set forth in this Section 9.3 such amount at a rate per annum equal to the three-month LIBOR (as reported prime rate published in The the Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) effect on the date such payment was required to be made through the date of payment. (f) If SOR II becomes obligated to pay a Termination Payment under this Section 9.3, then SOR II shall deposit into escrow an amount in cash equal to the applicable Termination Payment with an escrow agent reasonably selected by SOR, after reasonable consultation with SOR II, and pursuant to a written escrow agreement (the “Escrow Agreement”) reflecting the terms set forth in this Section 9.3 and otherwise reasonably acceptable to each of the Parties and the escrow agent. The payment or deposit into escrow of the applicable Termination Payment pursuant to this Section 9.3(b) shall be made by SOR II promptly after receipt of notice from SOR that the Escrow Agreement has been executed by the parties thereto and once deposited in escrow shall relieve SOR II from any further obligation to pay any fee required under this Section 9.3. The Escrow Agreement shall provide that the Termination Payment in escrow or the applicable portion thereof shall be released to SOR on an annual basis based upon the delivery by SOR to the escrow agent of any one (or a combination) of the following: (i) a letter from SOR’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to SOR without causing SOR to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code for the applicable taxable year of SOR determined as if no quotation the payment of such amount did not constitute income described in Sections 856(c)(2)(A) (H) or 856(c)(3)(A) (I) of the Code (such income, “Qualifying REIT Income”), in which case the escrow agent shall release to SOR such maximum amount stated in the accountant’s letter; (ii) a letter from SOR’s counsel indicating that SOR received a private letter ruling from the IRS holding that the receipt by SOR of the applicable Termination Payment would either constitute Qualifying REIT Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to SOR the remainder of the applicable Termination Payment; or (iii) a letter from SOR’s counsel indicating that SOR has received a tax opinion from SOR’s outside counsel or accountant, respectively, to the effect that the receipt by SOR of the applicable Termination Payment should either constitute Qualifying REIT Income or should be excluded from gross income within the meaning of Section 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to SOR the remainder of the applicable Termination Payment. The Parties agree to cooperate in good faith to amend this Section 9.3(f) at the reasonable request of SOR in order to (A) maximize the portion of the applicable Termination Payment that may be distributed to SOR hereunder without causing SOR to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (B) improve SOR’s chances of securing the favorable private letter ruling from the IRS described in this Section 9.3(f) or (C) assist SOR in obtaining the favorable tax opinion from its outside counsel or accountant described in this Section 9.3(f). The Escrow Agreement shall provide that SOR shall bear all costs and expenses under the Escrow Agreement and that any portion of the applicable Termination Payment held in escrow for three-month LIBOR is available for ten (10) years shall be released by the escrow agent to SOR II. SOR II shall not be a party to the Escrow Agreement and shall not bear any liability, cost or expense resulting directly or indirectly from the Escrow Agreement (other than any Taxes imposed on SOR II in connection therewith). SOR shall fully indemnify SOR II and hold SOR II harmless from and against any such dateliability, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collectioncost or expense.

Fees and Expenses. (a) Except as otherwise provided in this Section 9.3Agreement and whether or not the transactions contemplated by the Offer and this Agreement are consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated by the Offer and this Agreement will shall be paid by the party incurring such expense; provided, however, that the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the Companyexpenses. (b) In The Company shall pay to Parent, in same day funds, upon demand, an amount equal to $1,500,000 (the event that this Agreement is terminated: "INITIAL BREAK-UP FEE"), if any of the following shall occur: (i) (x) by if the Company Board or the Parent Board pursuant to Section 8.1(e), or by the Parent Board pursuant to Section 8.1(f), and (y) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Directors of the Company or any committee thereof shall have approved, or recommended that stockholders of its Subsidiaries enters into the Company accept or approve, an Acquisition Proposal by a third party, or shall have resolved to do any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; of the foregoing; (ii) by if the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to of Directors of the Company or any committee thereof shall have withdrawn or modified its approval of, or recommendation that the stockholders of the Company accept or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after approve (as the date of case may be), the Offer, this Agreement and prior the Merger, or shall have resolved to such termination (whether do any of the foregoing; or not conditional and whether or not withdrawn); (iii) by the Parent Board or if the Company shall have failed to include in the Schedule 14D-9 the recommendation of the Board pursuant to Section 8.1(d) and the Company Board is not at the time of Directors of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to that the notice and cure provisions thereof); or (iv) by stockholders of the Company Board pursuant to Section 8.1(k); then, in accept the case of a termination pursuant to (1) Section 9.3(b)(i)Offer. In addition, the Company shall pay to Parent Parent, in same day funds, upon demand, an amount equal to $150,000,000 6,500,000 (the "Company Termination FeeSUBSEQUENT BREAK-UP FEE"), by wire transfer if within a six-month period following the occurrence of same day funds to an account designated by Parent, upon the earlier to occur any of the consummation events specified in clauses (i), (ii), or (iii) above, (1) the Company shall consummate any merger, consolidation or sale of such Alternative Transaction and the execution all or substantially all of such agreementits assets, as applicable, or (2) any person, entity or "group" (as that term is used in Section 9.3(b)(ii13(d)(3) or Section 9.3(b)(ivof the Exchange Act), shall beneficially own (as that term is used in Section 13(d)(3) of the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iiiExchange Act), or shall have acquired, 50% or more of the Company Shares, or shall pay have been granted any option or right, conditional or otherwise, to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer acquire 50% or more of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%Shares. (c) In The Initial Break-up Fee and the event that this Agreement is terminated: Subsequent Break-up Fee shall not be deemed (ieither individually or together) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g)be liquidated damages, and the right to the payment of the such Break-up Fees shall be in addition to (yand not a maximum payment in respect of) a proposal for an Alternative Transaction with respect any other damages or remedies at law or in equity to Parent has been made to which Parent or its stockholders or such Purchaser may be entitled as a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time result of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case Company's violation or breach of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer any term or provision of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other party would not enter into this Agreement. Accordingly, if a party fails promptly to pay the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party interest on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collection.25

Fees and Expenses. (a) Except as provided otherwise set forth in this Section 9.38.03, all costs and expenses Expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement will Transactions shall be paid by the party incurring such expense; providedexpenses, howeverwhether or not the Merger is consummated. “Expenses”, that the costs as used in this Agreement, shall include all reasonable out-of-pocket fees and expenses (including all reasonable fees and expenses of printing counsel, accountants, investment bankers, experts and consultants to a party hereto and its affiliates) incurred by a party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement and the Transactions, any litigation with respect thereto, the preparation, printing, filing and mailing of the Joint Proxy Statement, and all the solicitation of stockholder approvals, the filing and other fees paid to the SEC or of any required notices under the HSR Act in connection with or other regulations and all other matters related to the Merger, will be borne equally by Parent closing of the Merger and the Companyother actions contemplated by this Agreement. (b) In the event that this Agreement is terminatedThe Company agrees that: (i) (x) by the Company Board or the if Parent Board pursuant to Section 8.1(e), or by the Parent Board pursuant to Section 8.1(f), and (y) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to shall terminate this Agreement pursuant to Section 8.1(g8.01(c)(ii), Section 8.01(c)(iii) or Section 8.01(c)(iv) then the Company shall pay to Parent promptly (but in any event no later than two business days after such termination shall have occurred) a fee of $7,500,000 in immediately available funds (the “Termination Fee”); (ii) if the Company shall terminate this Agreement pursuant to Section 8.01(d)(ii), then the Company shall pay to Parent the Termination Fee prior to or simultaneously with such termination; (iii) if Parent or the Company shall terminate this Agreement pursuant to Section 8.01(b)(iii), then the Company shall reimburse Parent all of its Expenses up to $1,000,000, provided that payment of the Expenses pursuant to this subsection (iii) shall not relieve the Company of any subsequent obligation to pay the Termination Fee pursuant to subsection (v) below; (iv) if (A) Parent or the Company shall terminate this Agreement pursuant to Section 8.01(b)(i), (B) prior to the time of such termination a Takeover Proposal shall have been publicly announced with respect to the Company, and (C) within 12 months after the date of such termination the Company consummates a transaction contemplated by a Takeover Proposal (whether or not such Takeover Proposal was the same Takeover Proposal referenced in clause (B)) (without giving effect provided that for purposes of this Section 8.03(b)(iv), all references to 15% in the definition of “Takeover Proposal” shall be replaced with references to 50%), then the Company shall pay to Parent the Termination Fee within two business days of the consummation of the transaction contemplated by such Takeover Proposal; (v) if (A) Parent or the Company shall terminate this Agreement pursuant to Section 8.01(b)(iii), (B) prior to the notice time of the Stockholders’ Meeting a Takeover Proposal shall have been publicly announced with respect to the Company, and cure provisions thereof(C) within 12 months after the date of such termination the Company consummates a transaction contemplated by a Takeover Proposal (whether or not such Takeover Proposal was the same Takeover Proposal referenced in clause (B)) (provided that for purposes of this Section 8.03(b)(v), all references to 15% in the definition of “Takeover Proposal” shall be replaced with references to 50%), then the Company shall pay to Parent the Termination Fee, less the amount of any Expenses previously reimbursed by the Company to Parent under subsection (iii) above, within two business days of the consummation of the transaction contemplated by such Takeover Proposal; or (ivvi) by the Company Board if (A) Parent shall terminate this Agreement pursuant to Section 8.1(k8.01(c)(i); then, (B) prior to the time of such termination (or in the 12 months after the time of such termination in the event of a termination on account of a breach of Section 6.04 or Section 6.02(a)) a Takeover Proposal shall have been publicly announced with respect to the Company, and (C) within 12 months after the date of such termination (or 12 months after the announcement of the Takeover Proposal in the case of a termination pursuant to on account of a breach of Section 6.04 or Section 6.02(a)) the Company consummates a transaction contemplated by a Takeover Proposal (1whether or not such Takeover Proposal was the same Takeover Proposal referenced in clause (B)) (provided that for purposes of this Section 9.3(b)(i8.03(b)(vi), all references to 15% in the definition of “Takeover Proposal” shall be replaced with references to 50%), then the Company shall pay to Parent an amount equal to $150,000,000 (the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur Fee within two business days of the consummation of the transaction contemplated by such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%Takeover Proposal. (c) In the event that this Agreement is terminated: (i) (x) by the If Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant and Parent is entitled to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of receive a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), receipt by wire transfer Parent of same day funds to an account designated by such Termination Fee in full will constitute liquidated damages and be the sole and exclusive remedy against the Company, upon the earlier to occur its officers, directors, employees, agents, affiliates, and representatives regardless of the consummation circumstances of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer except in cases of same day funds to an account designated by fraud. The parties hereto acknowledge and agree that in no event shall the Company and (B) $45,000,000be required to pay the Termination Fee on more than one occasion, by wire transfer of same day funds to an account designated by whether or not the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes Termination Fee may be payable under more than provision of this Section 9.3(c)Agreement, references to 20% in at the definition same or at different times and the occurrence of "Alternative Transaction" will be deemed to be references to 50%different events. (d) Each party acknowledges The Company and Parent acknowledge that the agreements contained in this Section 9.3 8.03 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other party would not enter into this Agreement. Accordingly, if a party fails promptly to pay the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party interest on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collectionTransactions.

Fees and Expenses. (a) Except as provided set forth in this Section 9.38.3, all costs fees and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement will hereby shall be paid by the party incurring such expensefees and expenses, whether or not the Merger is consummated; provided, provided however, that the costs Company and expenses the Parent shall share equally (i) the filing fee of printing the Parent’s pre-merger notification report under the HSR Act and (ii) all fees and expenses, other than accountants’ and attorneys’ fees, incurred with respect to the printing, filing and mailing of the Joint Proxy Statement/Prospectus (including any related preliminary materials), and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent UK Documents and the CompanyRegistration Statement and any amendments or supplements thereto. (b) In The Company shall pay the Parent a termination fee of US $7,000,000 in the event that of the termination of this Agreement is terminatedAgreement: (i) (x) by the Company Board or the Parent Board pursuant to Section 8.1(e8.1(b) or Section 8.1(d), or by in each case, if, at the Parent Board pursuant to Section 8.1(f), and (y) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date time of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company or is in willful breach of any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction obligations under Article V or any Alternative Transaction is consummatedArticle VI of this Agreement and such breach has been the principal cause of the inability to consummate the Merger or the failure to obtain the requisite vote of the stockholders of the Company in favor of the Company Voting Proposal; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn8.1(f);; or (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) if (A) at or prior to the time of such failure, there shall have been publicly announced a Company Acquisition Proposal which shall not have been absolutely and unconditionally withdrawn and abandoned and (B) on or before the date 12 months following the date of such termination of this Agreement, the Company Board is not enters into an Alternative Acquisition Agreement or consummates an Alternative Acquisition Proposal; provided, however, that if, at the time of termination, there is pending a Company Acquisition Proposal that does not involve a liquidation or dissolution of the Company, the Company Stockholders Meeting entitled shall be permitted to terminate this Agreement pursuant be undertake a complete liquidation or dissolution in lieu of such Company Acquisition Proposal and, under such circumstances, the Company shall not be obligated to Section 8.1(g) (without giving effect make any payment of a termination fee to the notice and cure provisions thereofParent under this Section 8.3(b); or (iv) by provided, however, that if a Company Acquisition Proposal and any liquidation or dissolution are a part of a series of related transactions, the Company Board pursuant shall be obligated to pay the termination fee provided for hereunder to the Parent. For the purposes of this Section 8.1(k); then8.3(b) only, all references in the definition of “Company Acquisition Proposal” to “15%” shall be deemed to be references to “30%.” Any fee due under this Section 8.3(b) shall be paid by wire transfer of same-day funds within one business day after (I) the date of termination of this Agreement, in the case of a termination payment pursuant to clause (1i) Section 9.3(b)(i)or (ii) above, the Company shall pay to Parent an amount equal to $150,000,000 or (the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, upon II) the earlier to occur of the execution of an Alternative Acquisition Agreement or consummation of such an Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% Acquisition Proposal in the definition case of "Alternative Transaction" will be deemed a payment pursuant to be references to 50%clause (iii) above. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the The Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges that the agreements contained in this Section 9.3 8.3 are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, the other party Parent would not enter into this Agreement. AccordinglyIf the Company fails to promptly pay any expense reimbursement or fee due hereunder, if a party fails promptly to the Company shall pay the amounts due pursuant costs and expenses (including legal fees and expenses) in connection with any action, including the filing of any lawsuit or other legal action, taken to this Section 9.3 and, in order to obtain such collect payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party together with interest on the amounts set forth in this Section 9.3 amount of any unpaid fee at a the publicly announced prime rate of Fleet Bank, N.A. plus five percent per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) orannum, if not reported thereincompounded quarterly, in another authoritative source selected by the party entitled to such amounts) on from the date such payment expense reimbursement or fee was required to be made (or if no quotation for three-month LIBOR is available for such date, on paid. Payment of the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses described in this Section 8.3 shall not be in lieu of collectiondamages incurred in the event of a breach of this Agreement described in clause (i) of Section 8.2.

Fees and Expenses. (a) In addition to any other amounts which may be payable or become payable pursuant to any other paragraph of this Section 8.02, if the Company shall have failed to satisfy or perform any of the conditions or obligations required to be satisfied or performed by it pursuant to Section 6.02(a) or 6.02(b) hereof and, as a result thereof, this Agreement is thereafter terminated, then the Company shall (provided that Newco is not then in material breach of its obligations under this Agreement), promptly, but in no event later than one business day after the termination of this Agreement (or from time to time after Closing), reimburse KKR & Co. for all documented out-of-pocket expenses and fees (including, without limitation, fees payable to all banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants, financial printers, experts and consultants to Newco and its affiliates), whether incurred prior to, on or after the date hereof, in connection with the Merger and the consummation of all transactions contemplated by this Agreement and the financing thereof; provided that, except as set forth in the next succeeding proviso or with respect to any reimbursement following the Closing, in no event shall the Company be required to pay in excess of an aggregate of $5 million pursuant to this paragraph (a); and provided further that, whether or not the Company has satisfied or performed the conditions and obligations required to be performed by it pursuant to Section 6.02(a) and 6.02(b) hereof, in the event a fee is payable to KKR & Co. pursuant to Section 8.02(b) hereof, the Company shall be required to pay expenses pursuant to this paragraph (a) up to a maximum of $12.5 million. (i) If this Agreement shall have been terminated in accordance with its terms and either of the following shall have occurred prior to such termination: (A) any corporation (including the Company or any of its subsidiaries or affiliates), partnership, person, other entity or "group" (as referred to in Section 13(d)(3) of the Exchange Act) other than Newco or any of its affiliates and other than any party to the Stockholders Agreement, including any Permitted Transferee (as defined in the Stockholders Agreement) of such a party which is or agrees to become bound thereby (so long as neither any such party to the Stockholders Agreement nor any such Permitted Transferee is a member of a "group" which includes any other person) (collectively, "Persons"), shall have become the beneficial owner of more than 20% of the outstanding shares of Company Common Stock; or (B)(x) any Person (other than Newco or any of its affiliates) shall have made, or proposed, communicated or disclosed in a manner which is or otherwise becomes public (including being known by stockholders of the Company owning of record or beneficially in the aggregate 5% or more of the outstanding shares of Company Common Stock) a bona fide intention to make a Transaction Proposal (including by making such a Transaction Proposal) and (y) on or prior to January 15, 1998, the Company either consummates with a Person a transaction the proposal of which would otherwise qualify as a Transaction Proposal under Section 5.08 or enters into a definitive agreement with a Person with respect to a transaction the proposal of which would otherwise qualify as a Transaction Proposal under Section 5.08 (whether or not such Person is the Person referred to in clause (x) above); or (ii) if this Agreement is terminated pursuant to Section 7.01(e) or Section 7.01(f); then the Company shall, (1) in the case of clause (b)(i)(A) and (b)(ii) above, promptly, but in no event later than one business day after the termination of this Agreement and (2) in the case of clause (b)(i)(B) above, promptly, but in no event later than one business day after an event specified in subclause (y) thereof shall have occurred, pay KKR & Co. a fee of $37.5 million in cash, which amount shall be payable in same day funds. No termination of this Agreement at a time when a fee is reasonably expected to be payable pursuant to this Section 8.02(b) following termination of this Agreement shall be effective until such fee is paid. Only one fee in the aggregate of $37.5 million shall be payable pursuant to this Section 8.02(b). No amount payable pursuant to any of the other provisions of this Section 8.02 shall reduce the amount of the fee payable pursuant to this paragraph (b). (c) In addition to the other provisions of this Section 8.02, in the event a fee is or becomes payable pursuant to Section 8.02(b) hereof, the Company agrees promptly, but in no event later than two business days following written notice thereof, together with related bills or receipts, to reimburse KKR & Co. and Newco for all reasonable out-of-pocket costs, fees and expenses, including, without limitation, the reasonable fees and disbursements of counsel and the expenses of litigation, incurred in connection with collecting the expenses pursuant to paragraph (a) of this Section and the fee pursuant to paragraph (b) of this Section, as a result of any breach by the Company of its obligations under this Section 8.02. (d) Except as provided otherwise in this Section 9.3paragraph (a) above, all costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement will hereby and thereby shall be paid by the party incurring such expense; provided, however, that the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the Companyexpenses. (b) In the event that this Agreement is terminated: (i) (x) by the Company Board or the Parent Board pursuant to Section 8.1(e), or by the Parent Board pursuant to Section 8.1(f), and (y) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); then, in the case of a termination pursuant to (1) Section 9.3(b)(i), the Company shall pay to Parent an amount equal to $150,000,000 (the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other party would not enter into this Agreement. Accordingly, if a party fails promptly to pay the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party interest on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collection.

Fees and Expenses. (a) Except as provided in this Section 9.35.07, all fees and expenses incurred in connection with the Merger, this Agreement, the Shareholders Agreements and the transactions contemplated hereby and thereby shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated, except that each of VeraSun and US BioEnergy shall bear and pay one-half of (1) the costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement will be paid by the party incurring such expense; providedfiling, however, that the costs and expenses of printing and mailing of the Form S-4 and the Joint Proxy Statement, Statement (including SEC filing fees) and all (2) the filing fees for the premerger notification and other fees paid to the SEC or report forms under the HSR Act in connection with the Merger, will be borne equally by Parent and the CompanyAct. (b) In the event that (i) this Agreement is terminated: (i) (x) terminated by the Company Board or the Parent Board US BioEnergy pursuant to Section 8.1(e), 7.01(g) or by the Parent Board pursuant to Section 8.1(f), and (yii) a proposal for an Alternative Transaction with respect (A) prior to the Company has obtaining of the US BioEnergy Shareholder Approval, a US BioEnergy Takeover Proposal shall have been made to US BioEnergy or shall have been made directly to the Company shareholders of US BioEnergy generally or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has shall have otherwise become publicly known after the date of this Agreement and prior to such termination or any person shall have publicly announced an intention (whether or not conditional and whether conditional) to make a US BioEnergy Takeover Proposal, (B) thereafter this Agreement is terminated by either VeraSun or US BioEnergy pursuant to Section 7.01(b)(i) (but only if a vote to obtain the US BioEnergy Shareholder Approval or the US BioEnergy Shareholders’ Meeting has not withdrawnbeen held) or Section 7.01(b)(iii) and (zC) within 12 months after such termination, the Company or any of its Subsidiaries US BioEnergy enters into a definitive Contract to consummate, or consummates, the transactions contemplated by any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; US BioEnergy Takeover Proposal, then US BioEnergy shall pay VeraSun a fee equal to $42,000,000 (iithe “US BioEnergy Termination Fee”) by the Parent Board pursuant to Section 8.1(hwire transfer of same-day funds on (x) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); then, in the case of a termination pursuant to payment required by clause (1i) Section 9.3(b)(i)above, the Company shall pay to Parent an amount equal to $150,000,000 date of termination of this Agreement and (y) in the "Company Termination Fee")case of a payment required by clause (ii) above, by wire transfer the date of same day funds to an account designated by Parent, upon the earlier first to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, events referred to in clause (2) Section 9.3(b)(ii) or Section 9.3(b)(ivii)(C), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this clause (ii)(C) of the immediately preceding sentence only, the term “US BioEnergy Takeover Proposal” shall have the meaning assigned to such term in Section 9.3(b), 4.02(a) except that all references to 20% in the definition of "Alternative Transaction" will “15%” therein shall be deemed to be references to 50“35%”. (c) In the event that (i) this Agreement is terminated: (i) (x) terminated by the Parent Board or the Company Board VeraSun pursuant to Section 8.1(e)7.01(h) or (ii) (A) prior to the obtaining of the VeraSun Shareholder Approval, or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has VeraSun Takeover Proposal shall have been made to Parent VeraSun or its stockholders shall have been made directly to the shareholders of VeraSun generally or such a proposal or an intention to make such a proposal has been publicly announced or has shall have otherwise become publicly known after the date of this Agreement and prior to such termination or any person shall have publicly announced an intention (whether or not conditional and whether conditional) to make a VeraSun Takeover Proposal, (B) thereafter this Agreement is terminated by either VeraSun or US BioEnergy pursuant to Section 7.01(b)(i) (but only if a vote to obtain the VeraSun Shareholder Approval or the VeraSun Shareholders’ Meeting has not withdrawnbeen held) or Section 7.01(b)(ii) and (zC) within 12 months after such termination, Parent VeraSun enters into a definitive Contract to consummate, or consummates, the transactions contemplated by any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or VeraSun Takeover Proposal, then VeraSun shall pay US BioEnergy a fee equal to $61,000,000 (iithe “VeraSun Termination Fee”) by the Company Board pursuant to Section 8.1(iwire transfer of same-day funds on (x) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a payment required by clause (i) above, the date of termination pursuant to of this Agreement and (1y) Section 9.3(c)(i)in the case of a payment required by clause (ii) above, Parent shall pay to the Company an amount equal to $90,000,000 (date of the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier first to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, events referred to in clause (2) Section 9.3(c)(ii) or Section 9.3(c)(ivii)(C), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this clause (ii)(C) of the immediately preceding sentence only, the term “VeraSun Takeover Proposal” shall have the meaning assigned to such term in Section 9.3(c), 4.03(a) except that all references to 20% in the definition of "Alternative Transaction" will “15%” therein shall be deemed to be references to 50“35%”. (d) Each party US BioEnergy acknowledges that the agreements contained in this Section 9.3 5.07(b) are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, the other party VeraSun would not enter into this Agreement. Accordingly; accordingly, if a party US BioEnergy fails promptly to pay the amounts amount due pursuant to this Section 9.3 5.07(b), and, in order to obtain such payment, the other party VeraSun commences a suit that results in a judgment against the first party US BioEnergy for the amounts fees set forth in this Section 9.35.07(b), the first party will US BioEnergy shall pay to the other party VeraSun its out-of-pocket costs and expenses (including attorneys’ fees and expenses) in connection with such suit, together with interest on the amounts set forth amount due at the prime rate of Citibank N.A. in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) effect on the date such payment was required to be made made. (or e) VeraSun acknowledges that the agreements contained in Section 5.07(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, US BioEnergy would not enter into this Agreement; accordingly, if no quotation VeraSun fails promptly to pay the amount due pursuant to Section 5.07(c), and, in order to obtain such payment, US BioEnergy commences a suit that results in a judgment against VeraSun for threethe fees set forth in Section 5.07(c), VeraSun shall pay to US BioEnergy its out-month LIBOR is available for of-pocket costs and expenses (including attorneys fees and expenses) in connection with such datesuit, together with interest on the next preceding amount due at the prime rate of Citibank N.A. in effect on the date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collectionpayment was required to be made.

Fees and Expenses. (a) Except as provided set forth in this Section 9.37.03, all costs fees and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement will hereby shall be paid by the party incurring such expenseexpenses, whether or not the Merger is consummated; provided, however, that -------- ------- Parent and the costs Company shall share equally (i) all SEC filing fees and printing expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act incurred in connection with the Merger, will be borne equally by Parent printing and filing of the Proxy Statement/Prospectus (including any preliminary materials related thereto) and the CompanyRegistration Statement (including financial statements and exhibits) and any amendments or supplements thereto and (ii) conveyance and similar taxes required to be paid or which Parent has agreed should be paid prior to the Effective Time pursuant to Section 5.16. (b) In The Company shall pay Guarantor a fee of $9.5 million (the event that "Fee") and shall also pay Parent's and Guarantor's respective actual, documented and reasonable out-of-pocket expenses relating to the transactions contemplated by this Agreement is terminated(including, but not limited to, fees and expenses of counsel and accountants and out-of-pocket expenses (but not fees) of financial advisors) ("Expenses," as applicable to Parent, Guarantor or the Company) in a combined amount not to exceed $1.5 million, upon the first to occur of any of the following events: (i) the termination of this Agreement by Parent or the Company pursuant to Section 7.01(c) following the Company Stockholders Meeting at which the stockholders of the Company failed to adopt this Agreement, provided that (xA) the Alternative Transaction Condition is satisfied and (B) the Exchange Ratio has not been adjusted pursuant to Section 7.01(j); (ii) the termination of this Agreement by Parent pursuant to Section 7.01(e); or (iii) the termination of this Agreement by the Company Board or the Parent Board pursuant to Section 8.1(e7.01(i), or by the Parent Board pursuant to Section 8.1(f), and (y) . The "Alternative Transaction Condition" shall be satisfied in respect of a proposal for termination of this Agreement if an Alternative Transaction with respect to the Company has been made to shall be publicly announced by the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after any third party during the period beginning on the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within ending 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after following the date of termination of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by transaction shall at any time thereafter be consummated on substantially the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof)terms theretofore announced; or (iv) by the Company Board pursuant to Section 8.1(k); thenprovided, that in the case of -------- Section 7.03(b)(i), such transaction provides for a per Share consideration with a fair market value greater than $23.00; and provided further, that for purposes -------- ------- of this definition, the definition of Alternative Transaction set forth in Section 4.02(a) shall be modified to replace "25%," as it appears in such definition, with 40%. (c) Upon a termination of this Agreement by Parent pursuant to Section 7.01(h), (1i) the Company shall pay to Guarantor and Parent their respective Expenses relating to the transactions contemplated by this Agreement in a combined amount not to exceed $1.5 million, and (ii) the Company shall pay Guarantor the Fee provided that (I) such Termination Breach is willful and (II) the Alternative Transaction Condition is satisfied. (d) Upon a termination of this Agreement by Parent pursuant to Section 9.3(b)(i7.01(f), the Company shall pay to Guarantor and Parent an their respective Expenses in a combined amount equal not to exceed $150,000,000 1.5 million. (e) Upon a termination of this Agreement by the "Company Termination Fee"), by wire transfer of same day funds pursuant to an account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii7.01(f) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i7.01(h), Parent shall pay to the Company its Expenses in an amount equal not to exceed $90,000,000 2.0 million. (the "Parent Termination Fee"f) The Fee and Expenses payable pursuant to Section 7.03(b) or Section 7.03(c), by wire transfer or the Expenses payable pursuant to Section 7.03(d) or Section 7.03(e), shall be paid within one business day after a demand for payment following the first to occur of same day funds any of the events described in the aforesaid Sections, as applicable; provided that, in no event shall the Company be required to an account designated by pay the -------- Fee or any Expenses to Parent, nor shall Parent be required to pay any Expenses to the Company if, immediately prior to the termination of this Agreement, the entity otherwise entitled to receive such fee and/or expenses was in material breach of its obligations under this Agreement or, in the case of Parent, Merger Sub was in material breach of its obligations under this Agreement or Guarantor was in material breach of the Guarantee. (g) Each of the Company, Parent and Merger Sub agrees that the payments provided for in this Section 7.03 shall be the sole and exclusive remedy of Parent and Merger Sub upon a termination of this Agreement by Parent pursuant to Section 7.01(c), (e), (f), (h) or (i), and the earlier to occur payments provided for in this Section 7.03 shall be the sole and exclusive remedy of the consummation Company upon a termination of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated this Agreement by the Company and pursuant to Section 7.01(f) or (B) $45,000,000h), by wire transfer regardless of same day funds the circumstances giving rise to an account designated by the Company, if, within 12 months after such termination; provided, Parent -------- however, that the foregoing shall not apply to any willful breach of this ------- Agreement or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummatedwillful misrepresentation hereunder giving rise to such termination. For purposes of this Subject to Section 9.3(c7.03(f), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other party would not enter into this Agreement. Accordingly, if a party fails promptly is entitled to pay the amounts due terminate this Agreement pursuant to this more than one clause of Section 9.3 and7.01, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party interest on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party shall be entitled to receive the Fees and Expenses to which it is entitled as a result of any such amounts) on the date such payment was required to termination, provided that in no event shall there be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses any duplication of collectionpayment.

Fees and Expenses. (a) Except as otherwise provided in this Section 9.3, all costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement will Expenses shall be paid by the party incurring such expensefees or expenses, whether or not the Merger is consummated; provided, however, provided that the costs and expenses of printing and mailing Parties will share equally any Form S-4 filing fees as may be required to consummate the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally transactions contemplated by Parent and the Companythis Agreement. (b) In the event that this Agreement is terminated: (i) (xA) by the Company Board or the Parent Board STAR pursuant to Section 8.1(e9.1(d)(i), on account of a failure to perform any obligation, covenant or agreement on the part of any of the STAR III Parties set forth in this Agreement, and after the date hereof and prior to the failure to perform giving rise to such right of termination, an Acquisition Proposal (with, for all purposes of this Section 9.3(b)(i), all percentages included in the definition of “Acquisition Proposal” increased to 50%) has been publicly announced, disclosed or otherwise communicated to the STAR Board or any Person shall have publicly announced an intention (whether or not conditional) to make such an Acquisition Proposal or (B)(x) by the Parent Board STAR III or STAR pursuant to Section 8.1(f9.1(b)(i) or Section 9.1(b)(iii), and (y) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and but prior to such termination the Stockholders Meeting, an Acquisition Proposal with respect to STAR III has been publicly announced, disclosed or otherwise communicated to STAR III’s stockholders (and not withdrawn) or any Person shall have publicly announced an intention (whether or not conditional and whether or not withdrawnconditional) to make such an Acquisition Proposal and (zy) within 12 twelve (12) months after the date of such termination, the Company a transaction in respect of an Acquisition Proposal with respect to STAR III is consummated or any of its Subsidiaries STAR III enters into any a definitive agreement providing for any Alternative Transaction or any Alternative Transaction in respect of an Acquisition Proposal with respect to STAR III that is later consummated, STAR III shall pay to STAR the Full Termination Payment; (ii) by the Parent Board STAR III pursuant to Section 8.1(h9.1(c)(ii), then STAR III shall pay to STAR (A) an amount equal to the Go Shop Termination Payment if such termination occurs no later than five (5) Business Days after (x) the Go-Shop Period End Time or (y) in the event of timely delivery of a STAR III Change Notice, the negotiation period contemplated by Section 7.3 (e)(ii) and a proposal for (B) an Alternative Transaction with respect amount equal to the Company has been made Full Termination Payment if the event giving rise to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such STAR III’s termination (whether or not conditional and whether or not withdrawn);right occurred thereafter; or (iii) by the Parent Board or the Company Board STAR pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); then, in the case of a termination pursuant to (1) Section 9.3(b)(i9.1(d)(ii), the Company then STAR III shall pay to Parent an amount equal to $150,000,000 STAR (the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2A) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Go Shop Termination Fee, which payment shall be made within two business days Payment if the event giving rise to STAR’s termination right occurred no later than five (5) Business Days after such termination and (3x) Section 9.3(b)(iii)the Go-Shop Period End Time or (y) in the event of timely delivery of a STAR III Change Notice, the Company shall pay to Parent an amount equal to (Anegotiation period contemplated by Section 7.3(e)(ii) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Full Termination Fee, which payment shall be made within two business days after such Payment if the event giving rise to STAR’s termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%right occurred thereafter. (d) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other party would not enter into this Agreement. Accordingly, if a party fails promptly to pay the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party interest on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collection.

Fees and Expenses. (a) Except as provided in this Section 9.3Whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement will hereby shall be paid by the party incurring such expense; providedcosts or expenses, however, that the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act except as provided in connection with the Merger, will be borne equally by Parent and the Companythis Article 8. (b) In the event that Notwithstanding anything in this Agreement is terminated: (i) (x) by the Company Board or the Parent Board pursuant to Section 8.1(e), or by the Parent Board pursuant to Section 8.1(f), and (y) a proposal for an Alternative Transaction with respect to the Company has been made to contrary, if Brushy terminates the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect 7.1(g), then Brushy, at or prior to the notice time of, and cure provisions thereof); or (iv) by as a pre-condition to the Company Board pursuant to Section 8.1(k); theneffectiveness of, in the case of a termination pursuant to (1) Section 9.3(b)(i)termination, the Company shall pay to Parent Lilis an amount equal to $150,000,000 1,200,000 (the "Company “Brushy Termination Fee"”), . Any such payment (i) shall be made by wire transfer of same day immediately available funds to an account designated by Parent, upon Lilis and (ii) shall be made prior to or concurrently with the earlier first to occur of the execution of a definitive agreement providing for an Acquisition Proposal or the consummation of such Alternative Transaction and an Acquisition Proposal. (c) Notwithstanding anything in this Agreement to the execution of such agreementcontrary, as applicable, (2) if Lilis terminates the Agreement pursuant to Section 9.3(b)(ii) or Section 9.3(b)(iv7.1(h), then Lilis, at or prior to the Company time of, and as a pre-condition to the effectiveness of, termination, shall pay to Parent Brushy an amount equal to $1,200,000 (the Company “Lilis Termination Fee, which ”). Such payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day immediately available funds to an account designated by Parent and Brushy. Any such payment (Bi) $105,000,000, shall be made by wire transfer of same day immediately available funds to an account designated by Parent, if, within 12 months after such termination, Brushy and (ii) shall be made prior to or concurrently with the Company enters into any first to occur of the execution of a definitive agreement providing for any Alternative Transaction an Acquisition Proposal or any Alternative Transaction is consummated. For purposes the consummation of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%an Acquisition Proposal. (cd) In the event that Notwithstanding anything in this Agreement to the contrary, if the Agreement is terminated: (i) (x) by the Parent Board or the Company Board terminated pursuant to Section 8.1(eeither of Sections 7.1(a), or by the Company Board pursuant to Section 8.1(g(b), and (yd), (e) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders (g), then Brushy, at or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); thentermination, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company Lilis an amount equal to $90,000,000 the Refundable Deposit, such amount being in addition to, and not in substitution for, any other amounts that may be owed by Brushy to Lilis pursuant to this Agreement, including, for the avoidance of doubt, Section 8.1(b). Any such payment (the "Parent Termination Fee"), i) shall be made by wire transfer of same day immediately available funds to an account designated by Lilis and (ii) shall be made prior to or concurrently with the Company, upon the earlier first to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any a definitive agreement providing for any Alternative Transaction an Acquisition Proposal or any Alternative Transaction is consummated. For purposes the consummation of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%an Acquisition Proposal. (de) Each party acknowledges that the agreements contained in this Section 9.3 8.1 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other party would not enter into this Agreement. Accordingly; accordingly, if a either party fails promptly to pay or cause to be paid the amounts due from it pursuant to this Section 9.3 and8.1 and if, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.38.1, the first defaulting party will shall pay to the other party its reasonable costs and expenses (including attorneys’ fees and expenses) incurred in connection with such suit and any appeal relating thereto, together with interest on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on 8.1 from the date such payment was required to be made due at 10% per annum. (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is availablef) plus 250 basis points, and including reasonable fees and related expenses This Section 8.1 shall survive any termination of collectionthis Agreement.

Fees and Expenses. Except as otherwise specified in this Agreement, each Party shall bear its own costs and expenses (including investment advisory and legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated by this Agreement; provided that Buyer, on the one hand, and the Members, subject to Section 12.16, severally in accordance with their Allocable Share, on the other hand, shall each be responsible for fifty percent (50%) of all Transfer Taxes; provided, further that Buyer, on the one hand, and the Company, on the other hand, shall each be responsible for fifty percent (50%) of the applicable filing fees under the HSR Act. The Members covenant and agree that (a) Except as provided in this Section 9.3, all costs and expenses incurred by the Company (including investment advisory and legal fees and expenses) in connection with this Agreement and the transactions contemplated by this Agreement or any other alternative transactions shall be paid in full by the Company at or prior to the Closing and (b) from and after the Closing, the Company shall not have any liability for any costs and expenses (including investment advisory and legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated by this Agreement will be paid by the party incurring such expense; provided, however, that the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and or any other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the Company. (b) In the event that this Agreement is terminated: (i) (x) by the Company Board or the Parent Board pursuant alternative transaction. Subject to Section 8.1(e), or by the Parent Board pursuant to Section 8.1(f), and (y) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination12.16, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) Members, severally in accordance with their Allocable Share, covenant and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); then, in the case of a termination pursuant to (1) Section 9.3(b)(i), agree that the Company shall not have any liability with respect to, and shall cause ▇▇▇▇▇ & Co. to release the Company from, any obligation to pay ▇▇▇▇▇ & Co. any amounts from and after the Closing (such release to Parent an amount equal be in a form acceptable to $150,000,000 (Buyer, provided that receipt of any such release shall not limit in any way the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur obligation of the consummation Members under this sentence). If after the Closing, Buyer receives a refund of such Alternative Transaction and the execution HSR fee, Buyer shall promptly pay fifty percent (50%) of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal refund to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an Members Representatives on account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%Members. (d) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other party would not enter into this Agreement. Accordingly, if a party fails promptly to pay the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party interest on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collection.

Fees and Expenses. (a) Except as provided in this Section 9.3, all costs All fees and expenses incurred in connection with this Agreement Agreement, the Merger and the other transactions contemplated by this Agreement will shall be paid by the party incurring such expense; providedfees or expenses, howeverwhether or not the Merger is consummated, except (i) as provided in paragraphs (b) and (d) of this Section 5.06 and (ii) that expenses incurred in connection with the costs and expenses of filing, printing and mailing the Joint Proxy Statement, Statement and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will Form S-4 shall be borne shared equally by Parent and the Company. (b) In the event that (i) this Agreement is terminated: (i) (x) terminated by the Company Board or the Parent Board pursuant to Section 8.1(e), 7.01(e) or by the Parent Board pursuant to Section 8.1(f), and (yii) a proposal for an Alternative Transaction with respect (A) prior to the Company has obtaining of the Shareholder Approval, a Takeover Proposal shall have been made to the Company or its stockholders shall have been made directly to the shareholders of the Company generally or such a proposal or an intention to make such a proposal has been publicly announced or has shall have otherwise become publicly known after the date of this Agreement and prior to such termination or any person shall have publicly announced an intention (whether or not conditional and whether conditional) to make a Takeover Proposal, (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 7.01(b)(i) (but only if a vote to obtain the Shareholder Approval or the Shareholders’ Meeting has not withdrawnbeen held) or Section 7.01(b)(iii) and (zC) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); then, in the case of a termination pursuant to (1) Section 9.3(b)(i), the Company shall pay to Parent an amount equal to $150,000,000 (the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into a definitive Contract to consummate, or consummates, the transactions contemplated by any definitive agreement providing Takeover Proposal, then the Company shall pay Parent a fee equal to $12,000,000 (the “Termination Fee”) by wire transfer of same-day funds on the first business day following (x) in the case of a payment required by clause (i) above, the date of termination of this Agreement and (y) in the case of a payment required by clause (ii) above, the date of the first to occur of the events referred to in clause (ii)(C). The Termination Fee shall be subject to a credit for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this expense reimbursement actually paid pursuant to Section 9.3(b5.06(d), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the The Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges acknowledge and agree that the agreements contained in this Section 9.3 5.06(b) are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, the other party Parent would not enter into this Agreement. Accordingly; accordingly, if a party the Company fails promptly to pay the amounts amount due pursuant to this Section 9.3 5.06(b), and, in order to obtain such payment, the other party Parent commences a suit that results in a judgment against the first party Company for the amounts set forth in this Section 9.3Termination Fee, the first party will Company shall pay to the other party Parent its costs and expenses (including attorneys’ fees and expenses) in connection with such suit, together with interest on the amounts set forth amount of the Termination Fee from the date such payment was required to be made until the date of payment at the prime rate of Citibank, N.A. in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) effect on the date such payment was required to be made. (d) The Company shall reimburse Parent and Sub for all their out-of-pocket expenses actually incurred in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement if this Agreement is terminated pursuant to Section 7.01(c)(i). Parent shall reimburse the Company for all its out-of-pocket expenses actually incurred in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement if this Agreement is terminated pursuant to Section 7.01(d). Any such reimbursement shall be paid upon demand following such termination, except that no payment shall be due under the first sentence of this Section 5.06(d) if the Company has previously made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collectionany payment due under Section 5.06(b).

Fees and Expenses. (a) Except as provided in this Section 9.3, all costs All fees and expenses incurred in connection with this Agreement Agreement, the Merger and the other transactions contemplated by this Agreement will hereby shall be paid by the party incurring such expense; providedfees or expenses, however, that whether or not the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the CompanyMerger is consummated. (b) In the event that this Agreement is terminatedthat: (i) (x) this Agreement is terminated by the Company Board or the Parent Board pursuant to Section 8.1(e7.1(g), or ; (ii) this Agreement is terminated by the Parent Board pursuant to Section 8.1(f7.1(d), and ; or (yiii) (A) a proposal for an Alternative Transaction with respect to the Company has Takeover Proposal shall have been made to the Company or its stockholders shareholders or such a proposal or any Person has announced an intention to make such make, or an interest in making, a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination Takeover Proposal (whether or not conditional and whether or not withdrawn), (B) thereafter this Agreement is terminated (1) by Parent or the Company pursuant to Section 7.1(b)(ii) or (2) by Parent pursuant to Section 7.1(e) in the event of a breach by the Company of any of its covenants contained in this Agreement and (zC) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction Acquisition Agreement with respect to the Company has been made to the Company to, or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date consummates, any Takeover Proposal (solely for purposes of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawnSection 5.6(b)(iii); (iii) by , the Parent Board or term “Takeover Proposal” shall have the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); then, meaning set forth in the case definition of a termination pursuant to (1) Takeover Proposal contained in Section 9.3(b)(i4.2(a), except that all references to 15% shall be deemed references to 50%), then the Company shall pay to Parent an amount a fee equal to $150,000,000 47 million (the "“Company Termination Fee"”) plus all out-of-pocket fees and expenses (including legal fees and expenses) actually incurred and reasonably documented by Parent in connection with this Agreement, the Merger and the other transactions contemplated hereby, which amount shall not exceed $3 million (the “Parent Expenses”), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination by the Company pursuant to (1) Section 9.3(c)(i7.1(g), Parent shall pay prior to or concurrently with such termination, (y) in the case of a termination by the Company an amount equal pursuant to $90,000,000 (the "Parent Termination Fee"Section 7.1(b)(ii) in accordance with Section 5.6(b)(iii), by wire transfer of same within the second business day funds to an account designated by the Company, upon the earlier to occur of following the consummation of such Alternative Transaction Takeover Proposal and (z) in the execution case of such agreement, as applicable, (2a termination by Parent pursuant to Section 7.1(d) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days Business Days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other party would not enter into this Agreement. Accordingly, if a party fails promptly to pay the amounts due pursuant to this Section 9.3 and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party for the amounts set forth in this Section 9.3, the first party will pay to the other party interest on the amounts set forth in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collection.

Fees and Expenses. (a) Except as otherwise provided in this Section 9.3Section, whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement will shall be paid by the party incurring such cost or expense; provided, however, that the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the Company. (b) In The Company will pay, or cause to be paid, to Parent by wire transfer of immediately available funds to an account designated by Parent, in accordance with Section 9.04(d), the event that this Agreement is terminated:sum of (x) Parent's Expenses (up to a maximum amount not to exceed $3.0 million) and (y) $80.0 million if: 66 (i) this Agreement is terminated pursuant to Section 8.01(e) or Section 8.01(f); or (ii) this Agreement is terminated pursuant to Section 8.01(b) and, with respect to this clause (ii) only, at the time of such termination (w) the Minimum Condition has not been satisfied, (x) by a bona fide Acquisition Proposal has been previously announced or made known to the Company Board or the Parent Board pursuant to Section 8.1(e), or by the Parent Board pursuant to Section 8.1(f), an offer commenced and (y) a proposal for an Alternative Transaction with respect prior to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date one year anniversary of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company or any of its Subsidiaries (I) consummates any Acquisition Proposal regardless of whether or not such Acquisition Proposal was the same Acquisition Proposal referred to in clause (x) or (II) enters into any definitive agreement in principle, arrangement, understanding or contract providing for the implementation of any Alternative Transaction or any Alternative Transaction is consummated; Acquisition Proposal (ii) other than a capital raising transaction by the Parent Board pursuant to Section 8.1(hCompany in the form of an underwritten public offering) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date regardless of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); such Acquisition Proposal was the same Acquisition Proposal referred to in clause (iii) by the Parent Board or the Company Board pursuant to Section 8.1(dx) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) shall consummate (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); then, in the case of a termination pursuant to (1) Section 9.3(b)(i), the Company shall pay to Parent an amount equal to $150,000,000 (the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) whether before or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3one year anniversary) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%Acquisition Proposal. (c) In the event that Any amounts payable pursuant to Sections 9.04(b)(i) shall be payable as promptly as practicable following termination of this Agreement is terminated: (ibut no more than three Business Days) (x) by the Parent Board or and, if the Company Board is the party seeking to terminate this Agreement, as a condition thereto. Any amounts payable pursuant to Section 8.1(e)9.04(b)(ii) shall be payable promptly but in no event later than three Business Days after the last of the specified events has occurred; provided that for the avoidance of doubt, or by it is understood and agreed that the Company Board last specified event to occur in connection with any amount payable pursuant to Section 8.1(g), and (y9.4(b)(ii) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time shall be consummation of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%applicable Acquisition Proposal. (d) Each party The Company acknowledges that the agreements contained in this Section 9.3 9.04 are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, the other party Parent and Merger Subsidiary would not enter have entered into this Agreement. Accordingly, if a party the Company fails promptly to pay the promptly any amounts due pursuant to this Section 9.3 9.04, and, in order to obtain such payment, the other party Parent commences a suit that which results in a judgment against the first party Company for the amounts fee or expense reimbursement set forth in this Section 9.39.04, the first party will Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest from the other party interest date of termination of this Agreement on the amounts set forth in this Section 9.3 so owed at a the prime rate of Chase Manhattan Bank per annum equal in effect from time to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) ortime during such period, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collection4%.

Fees and Expenses. (a) Except as otherwise provided in this Section 9.3, all costs Expenses shall be paid by the Party incurring such fees or expenses, whether or not the Merger is consummated; provided, that the Parties will share equally any HSR Act and expenses incurred in connection with this Agreement and Form S-4 filing fees as may be required to consummate the transactions contemplated by this Agreement will be paid by the party incurring such expense; provided, however, that the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the CompanyAgreement. (b) In the event that this Agreement is terminated: (i) (x) by the Company Board or the Parent Board Terra REIT pursuant to Section 8.1(e9.1(d)(ii), or by the Parent Board pursuant to Section 8.1(f), and (y) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated;; or (ii) by the Parent Board Terra BDC pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn9.1(c)(ii);; or (iii) by the Parent Board or the Company Board either Party pursuant to Section 8.1(d9.1(b)(iii) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement or by Terra REIT pursuant to Section 8.1(g9.1(d)(i) and (without giving effect A) prior to such termination, an Acquisition Proposal shall have been received by Terra BDC or its Representatives, is made directly to Terra BDC’s stockholders or is otherwise publicly disclosed or is otherwise communicated to the notice Terra BDC Board or Terra BDC Special Committee, or any Person has publicly announced an intention to make an Acquisition Proposal and cure provisions thereof(B) within nine (9) months after the date of such termination, Terra BDC enters into a definitive agreement in respect of, or consummates, any Acquisition Proposal (provided that for purposes of this subsection (iii); or (iv) by the Company Board pursuant , each reference to Section 8.1(k); then, “20% or more” in the case definition of a termination pursuant Acquisition Proposal shall be deemed to (1) Section 9.3(b)(ibe references to “more than 50%”), the Company then Terra BDC shall pay to Parent Terra REIT an amount equal to $150,000,000 (the "Company Termination Fee"), . Payment of the Termination Fee shall be made by wire transfer of same day funds to an the account or accounts designated by ParentTerra REIT (x) in the case of Section 9.3(b)(i), upon the earlier to occur of the consummation of within three Business Days after such Alternative Transaction and the execution of such agreement, as applicabletermination, (2y) in the case of Section 9.3(b)(ii) or Section 9.3(b)(iv), prior to or concurrently with the Company shall pay termination of this Agreement pursuant to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination Section 9.1(c)(ii) and (3z) in the case of Section 9.3(b)(iii), substantially concurrently with the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer consummation of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%Acquisition Proposal. (c) In Notwithstanding anything in this Agreement to the contrary, in the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e)Termination Fee becomes payable, or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or then such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination Terra REIT’s sole and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer exclusive remedy as liquidated damages for any and all losses or damages of same day funds to an account designated by the Company any nature against Terra BDC and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any each of its Subsidiaries enters into respective Representatives in respect of this Agreement, any definitive agreement providing executed in connection herewith, and the transactions contemplated hereby and thereby, including for any Alternative Transaction loss or any Alternative Transaction is consummated. For purposes damage suffered as a result of the termination of this Section 9.3(c)Agreement, references to 20% in the definition failure of "Alternative Transaction" will be deemed the Merger to be references consummated or for a breach or failure to 50%perform hereunder (whether intentionally, unintentionally, or otherwise) or otherwise. (d) Each party of the Parties hereto acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement Agreement, and that, that without these agreements, the other party Parties would not enter into this Agreement. Accordingly, if a party fails promptly In the event that Terra BDC shall fail to pay the amounts Termination Fee when due, Terra BDC shall reimburse Terra REIT for all reasonable costs and expenses actually incurred or accrued by Terra REIT (including reasonable fees and expenses of counsel) in connection with the collection under and enforcement of this Section 9.3. Further, if Terra BDC fails to timely pay any amount due pursuant to this Section 9.3 9.3, and, in order to obtain such the payment, the other party Terra REIT commences a suit that which results in a judgment against the first party Terra BDC for the amounts payment set forth in this Section 9.3, the first party will Terra BDC shall pay to the other party Terra REIT its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees) in connection with such suit, together with interest on the amounts set forth in this Section 9.3 such amount at a rate per annum equal to the three-month LIBOR (as reported prime rate of Citibank, N.A. in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) effect on the date such payment was required to be made through the date of payment. If payable, the Termination Fee shall not be payable more than once pursuant to this Agreement. (e) In the event that the Termination Fee shall be payable, Terra BDC shall deposit into escrow an amount in cash equal to the Termination Fee with an escrow agent reasonably selected by Terra BDC, after reasonable consultation with Terra REIT, and pursuant to a written escrow agreement (the “Escrow Agreement”) reflecting the terms set forth in this Section 9.3(e) and otherwise reasonably acceptable to each of the Parties and the escrow agent. The payment or deposit into escrow of the Termination Fee pursuant to this Section 9.3(e) shall be made by Terra BDC promptly after receipt of notice from Terra REIT that the Escrow Agreement has been executed by the parties thereto. The Escrow Agreement shall provide that the Termination Fee in escrow or the applicable portion thereof shall be released to Terra REIT on an annual basis based upon the delivery by Terra REIT to the escrow agent of any one (or a combination) of the following: (i) a letter from Terra REIT’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to Terra REIT without causing Terra REIT to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code for the applicable taxable year of Terra REIT determined as if no quotation for three-month LIBOR is available for the payment of such dateamount did not constitute income described in Sections 856(c)(2)(A)-(H) or 856(c)(3)(A)-(I) of the Code (such income, on “Qualifying REIT Income”), in which case the next preceding date for escrow agent shall release to Terra REIT such maximum amount stated in the accountant’s letter; (ii) a letter from Terra REIT’s counsel indicating that Terra REIT received a private letter ruling from the IRS holding that the receipt by Terra REIT of the Termination Fee would either constitute Qualifying REIT Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Terra REIT the remainder of the Termination Fee; or (iii) a letter from Terra REIT’s counsel indicating that Terra REIT has received a tax opinion from Terra REIT’s outside counsel or accountant, respectively, to the effect that the receipt by Terra REIT of the Termination Fee would either constitute Qualifying REIT Income or would be excluded from gross income within the meaning of Section 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Terra REIT the remainder of the Termination Fee. The Parties agree to cooperate in good faith to amend this Section 9.3(e) at the reasonable request of Terra REIT in order to (A) maximize the portion of the Termination Fee that may be distributed to Terra REIT hereunder without causing Terra REIT to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (B) improve Terra REIT’s chances of securing the favorable private letter ruling from the IRS described in this Section 9.3(e) or (C) assist Terra REIT in obtaining the favorable tax opinion from its outside counsel or accountant described in this Section 9.3(e). The Escrow Agreement shall provide that Terra REIT shall bear all costs and expenses under the Escrow Agreement. Terra BDC shall not be a party to the Escrow Agreement and shall not bear any liability, cost or expense resulting directly or indirectly from the Escrow Agreement (other than any Taxes of Terra BDC associated with the release of the funds to Terra BDC from the escrow). Terra REIT shall fully indemnify Terra BDC and hold Terra BDC harmless from and against any such a quotation is available) plus 250 basis pointsliability, and including reasonable fees and related expenses of collectioncost or expense.

Fees and Expenses. (a) Except as provided in paragraph (b) of this Section 9.35.06, all costs fees and expenses incurred in connection with this Agreement Agreement, the Merger and the other transactions contemplated by this Agreement will shall be paid by the party incurring such expense; providedfees or expenses, however, that whether or not the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the CompanyMerger is consummated. (b) In the event that (i) this Agreement is terminated: (i) (x) terminated by the Company Board or the Parent Board pursuant to Section 8.1(e), 7.01(e) or by the Parent Board pursuant to Section 8.1(f), and (yii) a proposal for an Alternative Transaction with respect (A) prior to the Company has obtaining of the Stockholder Approval, a Takeover Proposal shall have been made to the Company or its shall have been made directly to the stockholders of the Company generally or such a proposal or an intention to make such a proposal has been publicly announced or has shall have otherwise become publicly known after the date of this Agreement and prior to such termination or any person shall have publicly announced an intention (whether or not conditional and whether conditional) to make a Takeover Proposal, (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 7.01(b)(i) (but only if a vote to obtain the Stockholder Approval or the Stockholders' Meeting has not withdrawnbeen held) or Section 7.01(b)(iii) and (zC) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; (ii) by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); then, in the case of a termination pursuant to (1) Section 9.3(b)(i), the Company shall pay to Parent an amount equal to $150,000,000 (the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any a definitive agreement providing for to consummate, or consummates, the transactions contemplated by any Alternative Transaction or any Alternative Transaction is consummated. For purposes Takeover Proposal, then the Company shall pay Parent a fee equal to $4.4 million (the "Termination Fee") by wire transfer of same-day funds on the first business day following (x) in the case of a payment required by clause (i) above, the date of termination of this Section 9.3(b), references to 20% Agreement and (y) in the definition case of "Alternative Transaction" will be deemed a payment required by clause (ii) above, the date of the first to be references occur of the events referred to 50%in clause (ii)(C). (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the The Company Board pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), acknowledges and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party acknowledges agrees that the agreements contained in this Section 9.3 5.06(b) are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, the other party Parent would not enter into this Agreement. Accordingly; accordingly, if a party the Company fails promptly to pay the amounts amount due pursuant to this Section 9.3 5.06(b), and, in order to obtain such payment, the other party Parent commences a suit that results in a judgment against the first party Company for the amounts set forth in this Section 9.3Termination Fee, the first party will Company shall pay to the other party Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth amount of the Termination Fee from the date such payment was required to be made until the date of payment at the prime rate of Citibank, N.A. in this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) effect on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collectionmade.

Fees and Expenses. (a) Except as otherwise provided in this Section 9.37.3, all costs fees and expenses incurred in connection with this Agreement Agreement, the Merger and the other transactions contemplated by this Agreement will hereby shall be paid by the party incurring such expense; providedfees or expenses, however, that whether or not the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the CompanyMerger is consummated. (b) In the event that this Agreement is terminatedthat: (i) all of the following are met: (xA) an Acquisition Proposal (whether or not conditional) is made directly to the Company’s shareholders or is otherwise publicly disclosed and in each case not withdrawn prior to termination of this Agreement, (B) this Agreement is terminated by the Company Board or the Parent Board pursuant to Section 8.1(e)7.1(b)(i) (i.e., the Merger is not consummated by the Outside Date) or Section 7.1(b)(iii) (i.e., the Company Shareholders Approval is not obtained at the Company Shareholders Meeting) or by the Parent Board pursuant to Section 8.1(f7.1(c)(i) (i.e., breach of representations, warranties, covenants or agreements by the Company), and (yC) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known within twelve (12) months after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company or any of its Subsidiaries enters into an agreement in respect of any definitive agreement providing Acquisition Proposal, or recommends and submits an Acquisition Proposal to its shareholders for adoption, and in each case a transaction in respect of any Alternative Transaction or any Alternative Transaction Acquisition Proposal is consummated, which, in each case, need not be the same Acquisition Proposal that was made, disclosed or communicated prior to termination hereof (provided, that for purposes of this clause (C), each reference to “fifteen percent (15%)” in the definition of “Acquisition Proposal” shall be deemed to be a reference to “50%”); (ii) this Agreement is terminated by the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof7.1(c)(ii); or (iviii) this Agreement is terminated by the Company Board pursuant to Section 8.1(k7.1(d)(ii) (i.e., the Company accepts a Superior Proposal); then, in the case of a termination pursuant to (1) Section 9.3(b)(i)any such event, the Company shall pay to Parent an amount equal to a fee of $150,000,000 4,500,000 (the "“Company Termination Fee"”), it being understood that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion. (c) Payment of the Company Termination Fee shall be made by wire transfer of same day funds to an account the accounts designated by Parent, upon the earlier to occur of Parent (i) concurrently with the consummation of such Alternative Transaction and any transaction contemplated by an Acquisition Proposal, in the execution case of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the a Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board Fee payable pursuant to Section 8.1(e7.3(b)(i), (ii) as promptly as reasonably practicable after termination (and, in any event, within two Business Days thereof), in the case of termination by Parent pursuant to Section 7.1(c)(ii), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) simultaneously with, and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect as a condition to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); theneffectiveness of, termination, in the case of a termination by the Company pursuant to (1) Section 9.3(c)(i7.1(d)(ii), . In the event that Parent shall pay to receive the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment the receipt of the Company Termination Fee shall be made within two business days after such deemed to be liquidated damages for any and all losses or damages suffered or incurred by Parent, Merger Sub, any of their respective Affiliates or any other Person in connection with this Agreement (and the termination and (3) Section 9.3(c)(iiihereof), Parent shall pay to the Company an amount equal to transactions contemplated hereby (Aand the abandonment thereof) $45,000,000 within two business days after or any matter forming the basis for such termination, by wire transfer and none of same day funds Parent, Merger Sub, any of their respective Affiliates (collectively, “Parent Related Parties”) or any other Person shall be entitled to an account designated by bring or maintain any claim, action or proceeding against the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction Affiliates arising out of or in connection with this Agreement, the Merger or any Alternative Transaction is consummated. For purposes of the other transactions contemplated herein or any matters forming the basis for such termination; provided, however, that nothing in this Section 9.3(c)7.3(c) shall limit the rights of Parent or Merger Sub under Section 8.10 (Specific Performance) or relieve the Company from any liability or damage resulting from a material and willful breach of any of its representations, references to 20% warranties, covenants or agreements set forth in the definition of "Alternative Transaction" will be deemed to be references to 50%this Agreement or fraud. (d) Each party The Company acknowledges that the agreements contained in this Section 9.3 7.3 are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, the other party Parent and Merger Sub would not enter into this Agreement. Accordingly, if a party the Company fails promptly to pay the any amounts due pursuant to this Section 9.3 7.3, and, in order to obtain such payment, the other party Parent commences a suit that results in a judgment against the first party Company for the amounts set forth in this Section 9.37.3, the first party will Company shall pay to the other party Parent its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amounts set forth in due pursuant to this Section 9.3 7.3 from the date such payment was required to be made until the date of payment at a the prime lending rate per annum equal to the three-month LIBOR (as reported published in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) effect on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collectionmade.

Fees and Expenses. (a) Except as otherwise expressly provided in this Section 9.37.3, all costs fees and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement will Transactions shall be paid by the party Party incurring such expense; providedfees or expenses, howeverwhether or not the Mergers are consummated, except that the costs and expenses of incurred in connection with the filing, printing and mailing of the Form S-4 and the Joint Proxy Statement, and all filing and other fees paid to the SEC or under in respect of the HSR Act Act, in each case in connection with the MergerMergers (other than attorneys’ fees, will accountants’ fees and related expenses), shall be borne shared equally by Parent and the Company. (b) In the event that this Agreement is terminatedthat: (i) (xA) a Company Acquisition Proposal is publicly announced directly to the Company Stockholders or is otherwise publicly disclosed or otherwise publicly communicated to Company Stockholders, (B) this Agreement is terminated by the Company Board or the Parent Board pursuant to Section 8.1(e), 7.1(b)(i) (Outside Date) or Section 7.1(b)(iii) (Company Stockholder Approval Not Obtained) or by the Parent Board pursuant to Section 8.1(f7.1(c)(i) (Company Terminable Breach), and (yC) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known within one year after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, (1)(x) the Company or any of its Subsidiaries enters into an agreement in respect of any definitive agreement providing Company Acquisition Proposal or (y) recommends or submits any Company Acquisition Proposal to its stockholders for adoption or (2) any Alternative Transaction or transaction in respect of any Alternative Transaction Company Acquisition Proposal is consummated, which, in each case, need not be the same Company Acquisition Proposal that was publicly made, disclosed or communicated prior to termination hereof (provided, that for purposes of this clause (C), each reference to “20%” in the definition of “Company Acquisition Proposal” shall be deemed to be a reference to “50%”); (ii) this Agreement is terminated by the Parent Board pursuant to Section 8.1(h7.1(c)(ii) and a proposal for an Alternative Transaction with respect to the (Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date Adverse Recommendation Change; Breach of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawnNon-Solicitation Obligations);; or (iii) this Agreement is terminated by the Parent Board or the Company Board pursuant to Section 8.1(d7.1(b)(iii) and the (Company Board is not Stockholder Approval Not Obtained) and, at the time of such termination pursuant to Section 7.1(b)(iii) (Company Stockholder Approval Not Obtained), Parent had the Company Stockholders Meeting entitled right to terminate this Agreement pursuant to Section 8.1(g7.1(c)(ii) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(kAdverse Recommendation Change); then, in the case of a termination pursuant to (1) Section 9.3(b)(i)any such event, the Company shall pay to Parent an amount equal to a fee of $150,000,000 85,000,000 (the "“Company Termination Fee"”) less the amount of Parent Expenses previously paid to Parent (if any) pursuant to Section 7.3(d), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), it being understood that in no event shall the Company shall be required to pay to Parent an amount equal to the Company Termination FeeFee on more than one occasion; provided, which that the payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), by the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of Termination Fee pursuant to this Section 9.3(b)7.3 shall not relieve the Company from any liability or damage resulting from a Willful and Material Breach of any of its representations, references to 20% warranties, covenants or agreements set forth in the definition of "Alternative Transaction" will be deemed to be references to 50%this Agreement or Fraud. (c) In the event that this Agreement is terminatedthat: (i) (xA) a Parent Acquisition Proposal is publicly announced directly to Parent Stockholders or is otherwise publicly disclosed or otherwise publicly communicated to Parent Stockholders by the counterparty hereto, (B) this Agreement is terminated by Parent Board or the Company Board pursuant to Section 8.1(e), 7.1(b)(i) (Outside Date) or Section 7.1(b)(iv) (Parent Stockholder Approval Not Obtained) or by the Company Board pursuant to Section 8.1(g7.1(d)(i) (Parent Terminable Breach), and (yC) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known within one year after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, (1)(x) Parent enters into an agreement in respect of any definitive agreement providing Parent Acquisition Proposal or (y) recommends or submits any Parent Acquisition Proposal to its stockholders for adoption or (2) a transaction in respect of any Alternative Transaction or any Alternative Transaction Parent Acquisition Proposal is consummated, which, in each case, need not be the same Parent Acquisition Proposal that was publicly made, disclosed or communicated prior to termination hereof (provided, that for purposes of this clause (C), each reference to “20%” in the definition of “Parent Acquisition Proposal” shall be deemed to be a reference to “50%”); (ii) this Agreement is terminated by the Company pursuant to Section 7.1(d)(ii) (Parent Adverse Recommendation Change; Breach of Non-Solicitation Obligations); or (iiiii) this Agreement is terminated by the Company Board Parent pursuant to Section 8.1(i7.1(b)(iv) and a proposal for an Alternative Transaction with respect to (Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iiiStockholder Approval Not Obtained) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not and, at the time of such termination pursuant to Section 7.1(b)(iv) (Parent Stockholder Approval Not Obtained), the Parent Stockholders Meeting entitled Company had the right to terminate this Agreement pursuant to Section 8.1(f7.1(d)(ii) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(jAdverse Recommendation Change); then, in the case of a termination pursuant to (1) Section 9.3(c)(i)any such event, Parent shall pay to the Company a fee of $79,000,000 (the “Parent Termination Fee”) less the amount of Company Expenses previously paid to the Company (if any) pursuant to Section 7.3(e), it being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion; provided, that the payment by Parent of the Parent Termination Fee pursuant to this Section 7.3 shall not relieve Parent from any liability or damage resulting from a Willful and Material Breach of any of its representations, warranties, covenants or agreements set forth in this Agreement or Fraud. (d) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 7.1(b)(iii) (Company Stockholder Approval Not Obtained) under circumstances in which the Company Termination Fee is not then payable pursuant to Section 7.3(b)(i), then the Company shall reimburse Parent and its Affiliates for all of their reasonable and documented out-of-pocket fees and expenses (including all reasonable fees and expenses of counsel, accountants, investment bankers, experts and consultants to the Parent Parties and their respective Affiliates) incurred by the Parent Parties or on their behalf in connection with or related to the authorization, preparation, investigation, negotiation, execution and performance of this Agreement and the Transactions (the “Parent Expenses”), in an amount equal to $90,000,000 26,000,000; provided, that the payment by the Company of the Parent Expenses pursuant to this Section 7.3(d), (i) shall not relieve the Company of any subsequent obligation to pay the Company Termination Fee pursuant to Section 7.3(b) except to the extent indicated in such Section and (ii) shall not relieve the Company from any liability or damage resulting from a Willful and Material Breach of any of its representations, warranties, covenants or agreements set forth in this Agreement or Fraud. (e) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 7.1(b)(iv) (Parent Stockholder Approval Not Obtained) under circumstances in which the Parent Termination Fee is not then payable pursuant to Section 7.3(c)(i), then Parent shall reimburse the Company and its Affiliates for all of their reasonable out-of-pocket fees and expenses (including all reasonable fees and expenses of counsel, accountants, investment bankers, experts and consultants to the Company and its Affiliates) incurred by the Company or on its behalf in connection with or related to the authorization, preparation, investigation, negotiation, execution and performance of this Agreement and the Transactions (the "“Company Expenses”), in an amount equal to $24,000,000; provided, that the payment by Parent of the Company Expenses pursuant to this Section 7.3(e), (i) shall not relieve Parent of any subsequent obligation to pay the Parent Termination Fee")Fee pursuant to Section 7.3(c) except to the extent indicated in such Section and (ii) shall not relieve Parent from any liability or damage resulting from a Willful and Material Breach of any of its representations, warranties, covenants or agreements set forth in this Agreement or Fraud. Parent shall pay the Company Expenses within two Business Days after the date of termination to the Company by wire transfer of same immediately available funds. (f) Payment of the Company Termination Fee shall be made by wire transfer of same-day funds to an account the accounts designated by Parent (i) on the Company, upon the earlier to occur earliest of the consummation of such Alternative Transaction and the execution of such agreementa definitive agreement with respect to, submission to the stockholders of, or consummation of, any transaction contemplated by a Company Acquisition Proposal, as applicable, (2) in the case of a Company Termination Fee payable pursuant to Section 9.3(c)(ii7.3(b)(i) or (ii) as promptly as reasonably practicable after termination (and, in any event, within two Business Days thereof), in the case of termination by (x) Parent pursuant to Section 9.3(c)(iv7.1(c)(ii) or (y) the Company pursuant to Section 7.1(b)(iii) if, at the time of such termination pursuant to Section 7.1(b)(iii), Parent shall pay had the right to the Company an amount equal terminate this Agreement pursuant to Section 7.1(c)(ii). Payment of the Parent Termination Fee, which payment Expenses shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same same-day funds to an account the accounts designated by Parent within two Business Days after the date of termination. (g) Payment of the Parent Termination Fee shall be made by wire transfer of same-day funds to the accounts designated by the Company and (Bi) $45,000,000on the earliest of the execution of a definitive agreement with respect to, submission to the stockholders of, or consummation of, any transaction contemplated by a Parent Acquisition Proposal, as applicable, in the case of a Parent Termination Fee payable pursuant to Section 7.3(c)(i) or (ii) as promptly as reasonably practicable after termination (and, in any event, within two Business Days thereof), in the case of termination by (x) the Company pursuant to Section 7.1(d)(ii) or (y) Parent pursuant to Section 7.1(b)(iv) if, at the time of such termination pursuant to Section 7.1(b)(iv), the Company had the right to terminate this Agreement pursuant to Section 7.1(d)(ii). Payment of the Company Expenses shall be made by wire transfer of same same-day funds to an account the accounts designated by the Company, if, Company within 12 months two Business Days after such the date of termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (dh) Each party Party acknowledges that the agreements contained in this Section 9.3 7.3 are an integral part of the transactions contemplated by this Agreement Transactions, and that, without these agreements, the other party Parties would not enter into this Agreement. Accordingly, if a party Parent or the Company, as applicable, fails to promptly to pay the any amounts due pursuant to this Section 9.3 7.3, and, in order to obtain such payment, Parent or the other party Company, as applicable, commences a suit that results in a judgment against the first party Company or Parent, as applicable, for the amounts set forth in this Section 9.37.3, the first party will paying Party shall pay to the other party Party its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amounts set forth in due pursuant to this Section 9.3 7.3 from the date such payment was required to be made until the date of payment at a the prime lending rate per annum equal to the three-month LIBOR (as reported published in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) effect on the date such payment was required to be made made. (i) Notwithstanding any other provision of this Agreement, the Parties agree that each of the Parent Termination Fee and the Company Termination Fee constitute liquidated damages, and not a penalty, in reasonable amounts that will compensate Parent or if no quotation the Company, as applicable, in the circumstances in which such fees are payable for three-month LIBOR is available for such date, the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the next preceding date for expectation of the consummation of the transactions contemplated by this Agreement, which such amounts would otherwise be impossible to calculate with precision; provided, that nothing herein shall relieve any Party from liability arising out of or the result of a quotation is available) plus 250 basis pointsWillful and Material Breach of any of its representations, and including reasonable fees and related expenses warranties, covenants or agreements set forth in this Agreement or Fraud. The Parties further agree that the terms of collectionthis Agreement do not confer upon either Parent or the Company “a right or obligation with respect to” Company Common Stock within the meaning of Section 1234A of the Code.

Fees and Expenses. (a) Except as otherwise provided in this Section 9.37.3, all costs fees and expenses incurred in connection with this Agreement Agreement, the Merger and the other transactions contemplated by this Agreement will hereby shall be paid by the party incurring such expense; providedfees or expenses, however, that whether or not the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the CompanyMerger is consummated. (b) In the event that this Agreement is terminatedthat: (i) (xA) an Acquisition Proposal is made directly to the Company’s stockholders or is otherwise publicly disclosed or otherwise communicated to senior management of the Company or the Company Board (and such Acquisition Proposal shall not have been publicly withdrawn without qualification (I) on or prior to the tenth Business Day prior to the date of the Company Stockholders Meeting, with respect to termination pursuant to Section 7.1(b)(iii) and (II) on or prior to the 75th calendar day following the date such Acquisition Proposal has been made, with respect to any termination pursuant to Section 7.1(b)(i)), (B) this Agreement is terminated by the Company Board or the Parent Board pursuant to (x) Section 8.1(e7.1(b)(i), but solely if such termination under this clause (x) occurs prior to the receipt of the Company Stockholder Approval or by the Parent Board pursuant to (y) Section 8.1(f7.1(b)(iii), and (y) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (zC) within 12 months after the date of such termination, the Company or any of its Subsidiaries enters into an agreement in respect of any definitive agreement providing for Acquisition Proposal, or a transaction in respect of any Alternative Transaction or any Alternative Transaction Acquisition Proposal is consummated, which, in each case, need not be the same Acquisition Proposal that was made, disclosed or communicated prior to termination hereof (provided, that for purposes of the foregoing clause (A) and this clause (C), each reference to “15%” in the definition of “Acquisition Proposal” shall be deemed to be a reference to “50%”); (ii) (A) an Acquisition Proposal is made directly to the Company’s stockholders or is otherwise publicly disclosed or otherwise communicated to senior management of the Company or the Company Board (and such Acquisition Proposal shall not have been publicly withdrawn without qualification prior to the event giving rise to the termination right), (B) this Agreement is terminated by the Parent Board pursuant to Section 8.1(h7.1(c)(i) as a result of an intentional breach of a covenant or agreement occurring after the event described in clause (A), and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known (C) within 12 months after the date of this Agreement and such termination, the Company enters into an agreement in respect of any Acquisition Proposal, or a transaction in respect of any Acquisition Proposal is consummated, which, in each case, need not be the same Acquisition Proposal that was made, disclosed or communicated prior to such termination hereof (whether or not conditional provided, that for purposes of the foregoing clause (A) and whether or not withdrawnthis clause (C), each reference to “15%” in the definition of “Acquisition Proposal” shall be deemed to be a reference to “50%”); (iii) this Agreement is terminated by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof7.1(c)(ii); or (iv) this Agreement is terminated by the Company Board pursuant to Section 8.1(k7.1(d)(ii); then, in the case of a termination pursuant to (1) Section 9.3(b)(i)any such event, the Company shall pay to Parent an amount equal to a fee of $150,000,000 90,000,000 (the "Company “Termination Fee"”), it being understood that in no event shall the Company be required to pay the Termination Fee to Parent on more than one occasion; provided, that the payment by the Company of the Termination Fee pursuant to this Section 7.3 shall not relieve the Company from any liability or damage resulting from a material breach of any of its covenants or agreements set forth in this Agreement or fraud; provided, further, that, notwithstanding the foregoing, if Parent accepts payment from the Company of the Termination Fee in connection with a termination pursuant to Section 7.1(c)(ii)(D), none of the Company, its Subsidiaries, their respective Affiliates, and the former, current and future holders of any equity, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders and assignees of each of the Company, its Subsidiaries and each of their respective Affiliates, shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereunder (whether or not relating to or arising out of any material breach of this Agreement or of fraud). (c) Payment of the Termination Fee shall be made by wire transfer of same day funds to an account the accounts designated by Parent, upon Parent (i) on the earlier to occur earliest of the consummation of such Alternative Transaction and the execution of such agreementa definitive agreement with respect to, submission to the stockholders of, or consummation of, any transaction contemplated by an Acquisition Proposal, as applicable, (2) in the case of a Termination Fee payable pursuant to Section 9.3(b)(ii7.3(b)(i) or Section 9.3(b)(iv7.3(b)(ii), the Company shall pay to Parent an amount equal to the Company Termination Fee(ii) as promptly as reasonably practicable after termination (and, which payment shall be made in any event, within two business days after such termination and (3) Section 9.3(b)(iiiBusiness Days thereof), in the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer case of same day funds to an account designated termination by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board pursuant to Section 8.1(e7.1(c)(ii), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) simultaneously with, and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect as a condition to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); theneffectiveness of, termination, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds pursuant to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c7.1(d)(ii), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Each party The Company acknowledges that the agreements contained in this Section 9.3 7.3 are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, the other party Parent and Merger Sub would not enter into this Agreement. Accordingly, if a party the Company fails promptly to pay the any amounts due pursuant to this Section 9.3 7.3, and, in order to obtain such payment, the other party Parent commences a suit that results in a judgment against the first party Company for the amounts set forth in this Section 9.37.3, the first party will Company shall pay to the other party Parent its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amounts set forth in due pursuant to this Section 9.3 7.3 from the date such payment was required to be made until the date of payment at a the prime lending rate per annum equal to the three-month LIBOR (as reported published in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) effect on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collectionmade.

Fees and Expenses. (a) Except as otherwise provided in this Section 9.39.04, whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement will shall be paid by the party incurring such cost or expense; provided, however, that the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the Company. (b) In The Company will pay, or cause to be paid to Parent by wire transfer of immediately available funds to an account designated by Parent, in accordance with Section 9.04(c), the event that this Agreement is terminatedsum of $11.0 million if: (i) this Agreement is terminated pursuant to Section 8.01(e) or Section 8.01(f); or (ii) this Agreement is terminated pursuant to Section 8.01(h) and, with respect to this clause (ii) only, at the time of such termination (x) by the Company Board or the Parent Board pursuant to Section 8.1(e)Minimum Condition has not been satisfied, or by the Parent Board pursuant to Section 8.1(f), and (y) a proposal for an Alternative Transaction with respect to the Company has Acquisition Proposal existed or had been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly previously announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after prior to the nine-month anniversary of such termination, the Company or any of its Subsidiaries enters into consummates any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated;Acquisition Proposal. (iic) by the Parent Board Any amounts payable pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g9.04(b) (without giving effect to the notice and cure provisions thereof); or (ivi) by the Company Board pursuant to Section 8.1(k); then, in the case of a termination pursuant to (1) Section 9.3(b)(i), the Company shall pay to Parent an amount equal to $150,000,000 (the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, upon be payable on the earlier to occur of (i) the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days 90th day after such termination and (3ii) Section 9.3(b)(iii), concurrently with the Company shall pay to Parent consummation of an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummatedAcquisition Proposal. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that this Agreement is terminated: (i) (x) by the Parent Board or the Company Board Any amounts payable pursuant to Section 8.1(e), or by the Company Board pursuant to Section 8.1(g), and (y9.04(b)(ii) a proposal for an Alternative Transaction shall be payable concurrently with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%Acquisition Proposal. (d) Each party The Company acknowledges that the agreements contained in this Section 9.3 9.04 are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, the other party Parent and Merger Subsidiary would not enter have entered into this Agreement. Accordingly, if a party the Company fails promptly to pay the promptly any amounts due pursuant to this Section 9.3 9.04, and, in order to obtain such payment, the other party Parent commences a suit that which results in a judgment against the first party Company for the amounts fee or expense reimbursement set forth in this Section 9.39.04, the first party will Company shall pay to Parent its costs and expenses (including attorneys’ fees and expenses) in connection with such suit, together with interest from the other party interest date of termination of this Agreement on the amounts set forth in this Section 9.3 so owed at a the lesser of the prime rate of Chase Manhattan Bank per annum equal in effect from time to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) time during such period, plus 2% or, if not reported thereinlower, in another authoritative source selected the maximum rate permitted by the party entitled to such amounts) on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collectionLaw.

Fees and Expenses. (a) Except as provided in this Section 9.3The filing, printing and mailing fees and expenses associated with the Proxy Statement shall be paid by the Company. Whether or not the Merger or the other Transactions are consummated, all costs other fees and expenses incurred in connection with this Agreement Agreement, the Merger and the transactions contemplated by this Agreement will other Transactions shall be paid by the party incurring such expense; provided, however, that the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees paid to the SEC or under the HSR Act in connection with the Merger, will be borne equally by Parent and the Companyexpenses. (b) Notwithstanding anything to the contrary in this Agreement, if Parent and Sub fail to effect the Merger Closing when required by Section 2.02 for any or no reason or otherwise breach this Agreement or fail to perform hereunder (in any case, whether willfully, intentionally, unintentionally or otherwise), then, (i) except for the right of the Company to seek an injunction, specific performance or other equitable relief in accordance with Section 9.06, the Company’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against any of (w) Parent, Sub or the Sponsor, (x) any Financing Source, (y) the former, current and future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders and assignees of any Person named in clause (w) or (x) of this Section 8.03(b)(i), and (z) any future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders or assignees of any of the foregoing (the persons described in clauses (w), (x), (y) and (z), collectively, the “Parent Related Parties”) for any breach, loss or damage shall be to terminate this Agreement as provided, and only to the extent provided, in Section 8.01(d) or Section 8.01(g), and receive payment of a Termination Fee under and only to the extent provided by Section 8.03(c), and (ii) following termination of this Agreement in accordance with Section 8.01(d) or Section 8.01(g) and payment of the Termination Fee as provided in the immediately foregoing clause (i), none of the Parent Related Parties will have any Liability to the Company, its Subsidiaries or any of its and their Affiliates or any other Person relating to or arising out of this Agreement, the Limited Guarantee, the Financing Commitments or otherwise, whether at law or equity, in contract in tort or otherwise, and no Person will have any rights or claims against any of the Parent Related Parties hereunder or thereunder. In the event that the Company terminates this Agreement is terminated: in accordance with Section 8.01(d) or Section 8.01(g) and Parent thereafter pays the Termination Fee to the Company, then the Company agrees to cause any Litigation pending in connection with this Agreement or any of the Transactions (i) (xincluding any Litigation related to the Financing, the Equity Financing Commitment, the Debt Financing Commitments or the Limited Guarantee) by the Company Board or its Subsidiaries, and seek to cause any such Litigation by its and their Affiliates and any of their respective former, current or future directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders or assignees of any of the foregoing (collectively, the “Company Related Parties”) against Parent, Sub or any Parent Board Related Party to be dismissed with prejudice promptly, and in any event within five Business Days, after payment of the Termination Fee. In no event shall any of the Company Related Parties seek on behalf of any Company Related Party any damages from, or otherwise bring any Litigation against, any Parent Related Party in connection with this Agreement or any of the Transactions (including any Litigation related to the Financing, the Equity Financing Commitments, the Debt Financing Commitments or any of the Limited Guarantee), other than Litigation to recover payment of the Termination Fee to the extent the Termination Fee is not paid when due pursuant to Section 8.1(e)8.03(c) or for specific performance, injunction or by the Parent Board pursuant to other equitable remedy in accordance with Section 8.1(f), and (y) a proposal for an Alternative Transaction with respect to 9.06. In no event shall the Company has been made be entitled to seek the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date remedy of specific performance of this Agreement and prior other than in accordance with Section 9.06. Nothing in this Section 8.03 shall in any way expand or be deemed or construed to such termination (whether expand the circumstances in which Parent, Sub or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company any other Parent Related Party may be liable under this Agreement or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; the Transactions contemplated hereby (ii) by including the Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawnFinancing); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or (iv) by the Company Board pursuant to Section 8.1(k); then, in the case of a termination pursuant to (1) Section 9.3(b)(i), the Company shall pay to Parent an amount equal to $150,000,000 (the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (c) In the event that If this Agreement is terminated: (i) (x) terminated by the Parent Board or the Company Board pursuant to Section 8.1(e8.01(d) or Section 8.01(g), or by the Company Board pursuant to Section 8.1(g), and (y) a proposal for an Alternative Transaction with respect to then Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or (ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn); (iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or (iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall will pay to the Company an amount equal to $90,000,000 203,884,000 (the "Parent “Termination Fee"”). In the event the Termination Fee is payable, such fee will be paid to the Company by Parent by wire transfer of same day immediately available funds (to an account or accounts designated by the Company) within two Business Days after the date of termination of this Agreement. Solely for purposes of establishing the basis for the amount thereof, upon and without in any way increasing the earlier to occur amount of the consummation of such Alternative Transaction Termination Fee or expanding the circumstances in which the Termination Fee is to be paid, it is agreed that the Termination Fee is liquidated damages, and not a penalty, and the execution payment of such agreementthe Termination Fee in the circumstances specified herein is supported by due and sufficient consideration (including the fact that the holders of the Company Common Stock and LP Exchangeable Units immediately prior to the Effective Time would not be entitled to receive the Merger Consideration at the Effective Time). While the Company may pursue both a grant of specific performance, as applicable, (2injunction or other equitable remedies under Section 9.06(b) and the payment of Termination Fee under this Section 9.3(c)(ii) or Section 9.3(c)(iv8.03(c), Parent under no circumstances shall pay to the Company an amount equal be permitted or entitled to receive both a grant of specific performance of the Parent obligation to consummate the Merger Closing and monetary damages in connection with this Agreement or any termination of this Agreement, including all or any portion of the Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%. (d) Except for the payment by Parent or Sub of the Termination Fee when required and to the extent set forth in 8.03(c), payment by Parent or Sub of the Reimbursement Obligations as provided in Sections 6.10(b) if the Termination Fee has not already been paid and payment by the Sponsor pursuant to, and in accordance with, the Limited Guarantee when required and to the extent set forth therein, none of Parent, Sub nor any other Parent Related Party shall have any Liability for any Damages to the Company or any other Company Related Party in connection with this Agreement (including in respect of any breach of any representation, warranty, covenant or agreement or the failure of the Merger to be consummated) or the Transactions contemplated hereby and in no event shall any party hereto nor any Parent Related Party be liable for or obligated to pay consequential, special, multiple, punitive or exemplary damages including, but not limited to, damages arising from loss of profits, business opportunities or goodwill in respect of any breach or failure to comply with this Agreement or in respect of any of the Transactions (including the Financing and the Financing Commitments). The parties acknowledge and agree that in no event will Parent be required to pay the Termination Fee on more than one occasion. (e) If the Break-Up Fee has not already been paid pursuant to the terms of this Agreement, then if this Agreement is terminated by Parent pursuant to Section 8.01(e) or by the Company pursuant to Section 8.01(f), then, in any such case, the Company shall pay to ▇▇▇▇▇▇▇, Dubilier & Rice, LLC (“CD&R”), or an Affiliate thereof designated by CD&R, a non-refundable cash payment by wire transfer of immediately available funds to an account or accounts designated by CD&R, or an Affiliate thereof designated by CD&R, in an amount equal to $116,505,000 (the “Break-Up Fee”). For avoidance of doubt, if the Break-up Fee is paid, no payment other than the Break-Up Fee shall be made with respect to the expenses of Parent or Sub. (f) Any fee payable by the Company pursuant to Section 8.03(e) as the result of a termination of this Agreement by the Parent pursuant to Section 8.01(e) shall be paid within two Business Days following the date notice of termination is given. Any fee payable by the Company pursuant to Section 8.03(e) as the result of the termination of this Agreement by Parent pursuant to Section 8.01(f) shall be paid prior to or concurrently with such termination. (g) Each party of the Company, Parent and Sub acknowledges that the agreements contained in this Section 9.3 8.03 are an integral part of the transactions contemplated by this Agreement Transactions and that, without these agreements, neither the other party Company nor Parent would not enter have entered into this Agreement. Accordingly, if a party the Company or Parent fails promptly to pay the amounts any amount due pursuant to this Section 9.3 8.03, and, in order to obtain such payment, Parent or the other party Company commences a suit that results in a judgment against the first other party for the amounts set forth in this Section 9.3such fee, the first party will Company or Parent, as the case may be, shall pay to the other party its costs and expenses (including reasonable attorneys fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 9.3 amount of the applicable fee at a the prime lending rate per annum equal to the three-month LIBOR (as reported published in The Wall Street Journal (Northeast edition) or, if not reported thereinJournal, in another authoritative source selected by the party entitled to such amounts) effect on the date such payment was required to be made (or if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) plus 250 basis points, and including reasonable fees and related expenses of collectionmade.