Common use of Notice of Termination; Effect of Termination and Abandonment Clause in Contracts

Notice of Termination; Effect of Termination and Abandonment. (a) In the event the Company or Parent intends to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to Section 9.2, Section 9.3 or Section 9.4, as applicable, the Company or Parent, as applicable, shall give written notice to the other Party or Parties (as the case may be) specifying the provision or provisions of this Agreement pursuant to which such termination and abandonment is intended to be effected. (b) In the event this Agreement is terminated and the transactions contemplated by this Agreement are abandoned pursuant to this Article IX, this Agreement shall become void and of no effect with no liability to any Person on the part of any Party (or any of its Affiliates or its or their respective Representatives); provided, however, that: (i) no such termination shall relieve any Party of any liability or damages to any other Party (A) resulting from any actual fraud or knowing and intentional breach of this Agreement or (B) as contemplated by Section 9.3(b), Section 9.5(c) and Section 9.5(d); and (ii) the provisions set forth in Section 9.3(b), this Section 9.5 and the second sentence of Section 10.1 shall survive any termination of this Agreement and any abandonment of the transactions contemplated by this Agreement. Nothing shall limit or prevent any Party from exercising any rights or remedies it may have under Section 10.7 in lieu of terminating this Agreement pursuant to Article IX. As used in this Agreement, the phrase “knowing and intentional” means, with respect to any act or omission, the taking of a deliberate act, or omission, which act constitutes in and of itself a material breach, with the actual knowledge that the taking of, or failure to take, such act would cause or constitute or would reasonably be expected to cause or constitute a breach of this Agreement. (c) In the event this Agreement is terminated and the transactions contemplated by this Agreement abandoned pursuant to this Article IX: (i) by either the Company or Parent pursuant to Section 9.2(a) (but only if at such time of termination each of the conditions set forth in Section 8.1 are satisfied other than Section 8.1(a)) or Section 9.2(b) or by Parent pursuant to Section 9.4(a) and, in each case: (A) any Person or Group shall have made an Acquisition Proposal to the Company or its stockholders generally after the date of this Agreement, which becomes publicly known or announced (and not publicly withdrawn), and (B) within twelve (12) months after such termination, the Company enters into any Alternative Acquisition Agreement with respect to any Acquisition Proposal or consummates any Acquisition Proposal (with “fifty percent (50%)” being substituted in lieu of “fifteen percent (15%)” in each instance thereof in the definition of “Acquisition Proposal”) for purposes of this Section 9.5(c)(i)(B), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds concurrently with the consummation of an Acquisition Proposal. (ii) by Parent pursuant to Section 9.4(b)(i), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds within two (2) Business Days following the date of such termination and abandonment; (iii) by the Company pursuant to Section 9.3(b), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds immediately prior to or concurrently with such termination; or (d) The Parties acknowledge and agree that (i) in no event shall the Company be required to pay the Termination Fee on more than one occasion, (ii) the agreements set forth in this Section 9.5 and Section 9.3(b) are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other Parties would not enter into this Agreement and (iii) notwithstanding anything to the contrary set forth in this Agreement, other than in the case of actual fraud or knowing and intentional breach of this Agreement by the Company and subject to Section 10.7, in the event that the Termination Fee becomes payable by, and is paid or caused to be paid by, the Company, such fee shall be Parent’s sole and exclusive remedy for monetary damages or other relief pursuant to this Agreement. Accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 9.5, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the fees set forth in this Section 9.5 or any portion of such fees, the Company shall pay to Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented non-contingent attorneys’ fees) in connection with such suit, together with interest on the amount due pursuant to this Section 9.5 from the date such payment was required to be made until the date of payment at the annual rate of two percent (2%) plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made through the date of payment (or such lesser rate as is the maximum permitted by applicable Law).

Notice of Termination; Effect of Termination and Abandonment. (a) In the event the Company or Parent intends to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to Section 9.2, Section 9.3 or Section 9.4, as applicable, the Company or Parent, as applicable, shall give written notice to the other Party or Parties (as the case may be) specifying the provision or provisions of this Agreement pursuant to which such termination and abandonment is intended to be effected. (b) In the event this Agreement is terminated and the transactions contemplated by this Agreement are abandoned pursuant to this Article IX, this Agreement shall become void and of no effect with no liability to any Person on the part of any Party (or any of its Affiliates or its or their respective Representatives); provided, however, that: (i) no such termination shall relieve any Party of any liability or damages to any other Party (A) resulting from any actual fraud or knowing and intentional breach of this Agreement or (B) as -75- contemplated by Section 9.3(b), Section 9.5(c) and Section 9.5(d); and (ii) the provisions set forth in Section 9.3(b), this Section 9.5 and the second sentence of Section 10.1 shall survive any termination of this Agreement and any abandonment of the transactions contemplated by this Agreement. Nothing shall limit or prevent any Party from exercising any rights or remedies it may have under Section 10.7 in lieu of terminating this Agreement pursuant to Article IX. As used in this Agreement, the phrase “knowing and intentional” means, with respect to any act or omission, the taking of a deliberate act, or omission, which act constitutes in and of itself a material breach, with the actual knowledge that the taking of, or failure to take, such act would cause or constitute or would reasonably be expected to cause or constitute a breach of this Agreement. (c) In the event this Agreement is terminated and the transactions contemplated by this Agreement abandoned pursuant to this Article IX: (i) by either the Company or Parent pursuant to Section 9.2(a) (but only if at such time of termination each of the conditions set forth in Section 8.1 are satisfied other than Section 8.1(a)) or Section 9.2(b) or by Parent pursuant to Section 9.4(a) and, in each case: (A) any Person or Group shall have made an Acquisition Proposal to the Company or its stockholders generally after the date of this Agreement, which becomes publicly known or announced (and not publicly withdrawn), and (B) within twelve (12) months after such termination, the Company enters into any Alternative Acquisition Agreement with respect to any Acquisition Proposal or consummates any Acquisition Proposal (with “fifty percent (50%)” being substituted in lieu of “fifteen percent (15%)” in each instance thereof in the definition of “Acquisition Proposal”) for purposes of this Section 9.5(c)(i)(B), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds concurrently with the consummation of an Acquisition Proposal. (ii) by Parent pursuant to Section 9.4(b)(i), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds within two (2) Business Days following the date of such termination and abandonment; (iii) by the Company pursuant to Section 9.3(b), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds immediately prior to or concurrently with such termination; or (d) The Parties acknowledge and agree that (i) in no event shall the Company be required to pay the Termination Fee on more than one occasion, (ii) the agreements set forth in this Section 9.5 and Section 9.3(b) are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other Parties would not enter into this Agreement and (iii) notwithstanding anything to the contrary set forth in this Agreement, other than in the case of actual fraud or knowing and intentional breach of this Agreement by the Company and subject to Section 10.7, in the event that the Termination Fee becomes payable by, and is paid or caused to be paid by, the Company, such fee shall be Parent’s sole and exclusive remedy for monetary damages or other relief pursuant to this Agreement. Accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 9.5, and, in order to obtain such payment, Parent Xxxxxx commences a suit that results in a judgment against the Company for the fees set forth in this Section 9.5 or any portion of such fees, the Company shall pay to -76- Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented non-contingent attorneys’ fees) in connection with such suit, together with interest on the amount due pursuant to this Section 9.5 from the date such payment was required to be made until the date of payment at the annual rate of two percent (2%) plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made through the date of payment (or such lesser rate as is the maximum permitted by applicable Law).

Notice of Termination; Effect of Termination and Abandonment. (a) In the event the Company or Parent intends to terminate this Agreement and abandon the transactions contemplated by this Agreement Transactions pursuant to Section 9.2, Section 9.3 (other than Section 9.3(b)) or Section 9.4, as applicable, the Company or Parent, as applicable, shall give written notice to the other Party or Parties (as the case may be) specifying the provision or provisions of this Agreement pursuant to which such termination and abandonment is intended to be effected. (b) In the event this Agreement is terminated and the transactions contemplated by this Agreement Transactions are abandoned pursuant to this Article IX, this Agreement shall become void and of no effect with no liability to any Person on the part of any Party (or any of its Affiliates or its or their respective Representatives); provided, however, that: , subject in the case of Parent and Merger Sub to Section 9.5(d) and Section 9.5(e), (i) no such termination shall relieve any Party of any liability or damages to any other Party (A) resulting from any actual fraud or knowing willful and intentional material breach of this Agreement or (B) as contemplated by Section 9.3(b), Section 9.5(c) and Section 9.5(d); and (ii) the provisions set forth in Section 9.3(b), this Section 9.5 and the second sentence of Section 10.1 shall survive any termination of this Agreement and any abandonment of the transactions contemplated by this Agreement. Nothing shall limit or prevent any Party from exercising any rights or remedies it may have under Section 10.7 in lieu of terminating this Agreement pursuant to Article IX. As used in this Agreement, the phrase “knowing and intentional” means, with respect to any act or omission, the taking of a deliberate act, or omission, which act constitutes in and of itself a material breach, with the actual knowledge that the taking of, or failure to take, such act would cause or constitute or would reasonably be expected to cause or constitute a breach of this AgreementTransactions. (c) In the event this Agreement is terminated and the transactions contemplated by this Agreement Transactions abandoned pursuant to this Article IX: (i) by either the Company or Parent pursuant to Section 9.2(a) (but only if at such time of termination each of the conditions set forth in Section 8.1 are satisfied other than Section 8.1(a)) or Section 9.2(b) or by Parent pursuant to Section 9.4(a) and, in each case: : (A) any Person or Group shall have made an Acquisition Proposal to following the Company or its stockholders generally after the date execution of this Agreement, which becomes a bona fide Acquisition Proposal (whether or not conditional or not withdrawn) shall have been made to the Company Board or publicly known disclosed or any Person shall have publicly announced an intention (and whether or not publicly conditional or not withdrawn), and ) to make an Acquisition Proposal; (B) within twelve (12) months after at the time of such termination, the condition set forth in clause (c) of the Offer Conditions has been satisfied or is capable of being satisfied; and (C) within twelve months after any such termination and abandonment, (1) the Company enters or any of Subsidiaries shall have entered into any an Alternative Acquisition Agreement with respect to Agreement, or (2) any Acquisition Proposal or consummates any Acquisition Proposal shall have been consummated (with “fifty percent (50%)percent” being substituted in lieu of “fifteen percent (15%)percent” in each instance thereof in the definition of “Acquisition Proposal”) ” referenced in the definition of “Alternative Acquisition Agreement” or otherwise for purposes of this Section 9.5(c)(i)(B9.5(c)(i)(C)), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds concurrently with the consummation occurrence of an Acquisition Proposal.any of the events contemplated by this Section 9.5(c)(i)(C), whichever is the earliest to occur; (ii) by Parent pursuant to Section 9.4(b)(i9.4(b), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds upon entry into an Alternative Acquisition Agreement (if applicable) or otherwise within two (2) Business Days following the date of such termination and abandonment;; or (iii) by the Company pursuant to Section 9.3(b9.3(a) or Section 9.3(c), then the Company Parent shall pay or cause to be paid to the Company the Parent the Termination Fee by wire transfer of immediately available funds immediately prior to or concurrently with within two Business Days following the date of such termination; ortermination and abandonment. (d) The Parties acknowledge and agree that (i) in no event shall the Company be required to pay the Termination Fee or Parent to pay the Parent Termination Fee on more than one occasion, (ii) the agreements set forth in this Section 9.5 and Section 9.3(b) are an integral part of the transactions contemplated by this Agreement Transactions and that, without these agreements, the other Parties would not enter have entered into this Agreement and accordingly, if the Company or Parent fails to promptly pay or cause to be paid the amounts due pursuant to this Article IX, and, in order to obtain such amount, Parent or Company (as applicable) commences a Proceeding that results in a judgment against the Company for the Termination Fee or against Parent for the Parent Termination Fee (or any portion thereof), the Company shall pay or cause to be paid to Parent or Parent shall pay or cause to be paid to the Company (as applicable) its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) in connection with such Proceeding, together with interest on the Termination Fee or the Parent Termination Fee (or any portion thereof), as the case may be, at the prime rate published in The Wall Street Journal in effect on the date such amounts were required to be made from such date through the date of payment (collectively, “Enforcement Costs”) and (iii) notwithstanding anything to the contrary set forth in this Agreement, other than in the case of actual fraud or knowing and intentional breach of this Agreement by the Company and subject to Section 10.7, in the event that the Termination Fee or the Parent Termination Fee becomes payable by, and is paid or caused to be paid by, the CompanyCompany or Parent (as the case may be), such fee shall be Parent’s or the Company’s sole and exclusive remedy for monetary damages or other relief (including specific performance) pursuant to this Agreement. Accordingly; provided, if however, that any such payment shall not relieve the Company fails of any liability or damages incurred or suffered by Parent or Merger Sub to promptly pay the amount due extent that such liability or damages were the result of or arise out of any fraud or willful and material breach of this Agreement (including with respect to willful and material breaches of this Agreement pursuant to which the Termination Fee shall have become or becomes payable pursuant to this Section 9.5, andArticle IX), in order which case Parent and/or Merger Sub shall be entitled to obtain such paymentall rights and remedies available in equity or at law, in contract, in tort or otherwise. The Termination Fee or the Parent commences a suit that results in a judgment against the Company for the fees set forth in this Section 9.5 or any portion of such feesTermination Fee, the Company shall pay as applicable, if, as and when required to Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented non-contingent attorneys’ fees) in connection with such suit, together with interest on the amount due be paid pursuant to this Section 9.5 from shall not constitute a penalty but rather liquidated damages in a reasonable amount that shall compensate the date Party receiving such amount in the circumstances in which it is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger. (e) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 10.7, each of the Parties acknowledges and agrees that the Company’s right to terminate this Agreement and receive payment was required of the Parent Termination Fee to the extent that it is payable pursuant to Section 9.5(c)(iii) (including, without duplication, pursuant to the Company’s right to enforce the Limited Guarantees solely with respect thereto), together with any Enforcement Costs pursuant to Section 9.5(d) and any Reimbursement Obligations, shall constitute the sole and exclusive remedy of the Company and its Subsidiaries and their respective Affiliates and any of their respective former, current or future general or limited partners, stockholders, equityholders, members, managers, directors, officers, employees, agents or Affiliates (collectively, the “Company Related Parties”) against Parent, the Investors and their respective Affiliates and any of their respective former, current or future general or limited partners, stockholders, equityholders, members, managers, directors, officers, employees, agents, financing sources or Affiliates or any former, current or future general or limited partner, stockholder, equityholder, member, manager, director, officer, employee, agent, financing source or Affiliate of any of the foregoing (collectively, the “Parent Related Parties”) for any and all losses and damages in respect of this Agreement (or the termination thereof) or the Transactions (or the failure of such transactions to occur for any reason or for no reason) or any breach or threatened or alleged breach of (whether willful, intentional, unilateral or otherwise), or failure or threatened or alleged failure to perform under, any covenant or agreement or otherwise in respect of this Agreement or any oral representation made or alleged to be made until in connection herewith, and, subject to Parent’s obligation to pay the date Parent Termination Fee to the Company to the extent it is payable pursuant to Section 9.5(c)(iii), together with any Enforcement Costs pursuant to Section 9.5(d) and any Reimbursement Obligations, none of payment the Parent Related Parties shall have any liability or obligation to any of the Company Related Parties arising out of, relating to or in connection with this Agreement, the Limited Guarantees (subject to the Company’s rights to enforce the Limited Guarantees), the Equity Commitment Letters or the Transactions or thereby and, except as provided in Section 10.7, none of the Company Related Parties shall seek to 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 losses or damages suffered in connection with this Agreement or the annual rate of two percent (2%) plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required Transactions or any oral representation made or alleged to be made through in connection herewith or therewith (except, in all cases, that (i) the date Parent Related Parties shall remain obligated with respect to the Confidentiality Agreement and Section 10.3 (with respect to the expenses of payment Parent and Merger Sub); and (ii) the parties to the Limited Guarantees shall remain obligated, and the Company and its Subsidiaries may be entitled to remedies, with respect to the Limited Guarantees (to the extent provided therein)). In no event shall any Parent Related Party be subject to (nor shall any Company Related Party seek to recover) monetary damages other than the Parent Termination Fee to the extent that it is payable pursuant to Section 9.5(c)(iii), together with any Enforcement Costs pursuant to Section 9.5(d) and Reimbursement Obligations, for any losses, damages or other liabilities arising out of, relating to or in connection with breaches by Parent of its representations, warranties, covenants and agreements contained in this Agreement or arising from any claim or cause of action that any Company Related Party may have, or in respect of any oral representation made or alleged to be made in connection herewith (except, in all cases, that (i) the Parent Related Parties shall remain obligated with respect to the Confidentiality Agreement and Section 10.3 (with respect to the expenses of Parent and Merger Sub); and (ii) the parties to the Limited Guarantees shall remain obligated, and the Company and its Subsidiaries may be entitled to remedies, with respect to the Limited Guarantees (to the extent provided therein)). Notwithstanding anything to the contrary set forth in this Agreement, in no event shall the Company be entitled to receive both the Parent Termination Fee pursuant to Section 9.5(c)(iii) and specific performance under Section 10.7 to cause the consummation of the Transactions. (f) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 10.7 and the proviso in the first sentence of Section 9.5(d), each of the Parties acknowledges and agrees that Parent’s receipt of the Termination Fee to the extent that it is payable pursuant to Section 9.3(b) or Section 9.5(c), together with any Enforcement Costs pursuant to Section 9.5(d), shall constitute the sole and exclusive remedy of the Parent Related Parties against the Company Related Parties for any and all losses and damages in respect of this Agreement (or the termination thereof) or the Transactions (or the failure of such lesser rate transactions to occur for any reason or for no reason) or any breach or threatened or alleged breach of (whether willful, intentional, unilateral or otherwise), or failure or threatened or alleged failure to perform under, 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, subject to the Company’s obligation to pay the Termination Fee to Parent to the extent that it is payable pursuant to Section 9.3(b) or Section 9.5(c), together with any Enforcement Costs pursuant to Section 9.5(d), none of the Company Related Parties shall have any liability or obligation to any of the Parent Related Parties arising out of, relating to or in connection with this Agreement or the Transactions and, except as is provided in Section 10.7, no Parent Related Party shall seek to 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 losses or damages suffered in connection with this Agreement or the maximum permitted Transactions or any oral representation made or alleged to be made in connection herewith or therewith (except, in all cases, that the Company shall remain obligated with respect to the Confidentiality Agreement and Section 10.3 (with respect to the expenses of the Company)). Notwithstanding anything to the contrary set forth in this Agreement, in no event shall Parent be entitled to receive both the Termination Fee pursuant to Section 9.5(c)(ii) and specific performance under Section 10.7 to cause the consummation of the Transactions. For the avoidance of doubt and notwithstanding anything to the contrary herein, the payment of the Termination Fee and Enforcement Costs (if any) shall not relieve the Company of any liability or damages incurred or suffered by applicable LawParent or Merger Sub to the extent that such liability or damages were the result of or arise out of any fraud or willful and material breach of this Agreement (including with respect to willful and material breaches of this Agreement pursuant to which the Termination Fee shall have become or becomes payable pursuant to this Article IX), in which case Parent and/or Merger Sub shall be entitled to all rights and remedies available in equity or at law, in contract, in tort or otherwise.

Notice of Termination; Effect of Termination and Abandonment. (a) In the event the Company or Parent intends to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to Section 9.2, Section 9.3 or Section 9.4, as applicable, the Company or Parent, as applicable, shall give written notice to the other Party or Parties (as the case may be) specifying the provision or provisions of this Agreement pursuant to which such termination and abandonment is intended to be effected. (b) In Except to the extent provided in Sections 9.5(c), 9.5(d) and 10.1, in the event of termination of this Agreement is terminated and abandonment of the transactions contemplated by this Agreement are abandoned pursuant to this Article IX, this Agreement shall become void and of no effect with no liability to any Person on the part of any Party (or any of its Affiliates or its or their respective Representatives); provided, however, that: and notwithstanding anything to the contrary set forth in this Agreement, (i) except as provided in Section 9.5(d)(iii), no such termination shall relieve any Party of any liability or damages to any other Party (A) resulting from any actual its fraud or knowing and intentional breach of this Agreement or (B) as contemplated by Section 9.3(b)Agreement, Section 9.5(c) and Section 9.5(d); and (ii) the provisions set forth in Section 9.3(b), this Section 9.5 and the second sentence of Section 10.1 Article X shall survive any termination of this Agreement and any abandonment of the transactions contemplated by this Agreement. Nothing shall limit or prevent any Party from exercising any rights or remedies it may have under Section 10.7 in lieu of terminating this Agreement pursuant to Article IX. As used in this Agreement, the phrase “knowing and intentional” means, with respect to any act or omission, the taking of a deliberate act, or omission, which act constitutes in and of itself a material breach, with the actual knowledge that the taking of, or failure to take, such act would cause or constitute or would reasonably be expected to cause or constitute a breach of this Agreement. (c) In the event this Agreement is terminated and the transactions contemplated by this Agreement abandoned pursuant to this Article IX: (i) by either the Company or Parent pursuant to Section 9.2(a9.2(b) (but only if at such time of termination each of the conditions set forth in Section 8.1 are satisfied other than Section 8.1(a)) or Section 9.2(bVote-Down) or by Parent pursuant to Section 9.4(a) (Company Breach) and, in each either such case: (A) any Person or Group shall have made publicly announced an Acquisition Proposal for the first time after the date hereof and such Acquisition Proposal shall not have been withdrawn without qualification (1) prior to the Vote-Down, with respect to termination and abandonment pursuant to Section 9.2(b) (Vote-Down), or (2) prior to the date of such termination, with respect to any termination and abandonment pursuant to Section 9.4(a) (Company Breach); provided that for purposes of this Section 9.5(c)(i)(A), an Acquisition Proposal made by any Person shall not be deemed to have been “withdrawn” if, within 12 months after such termination and abandonment, the Company or any of its Subsidiaries shall have entered into a definitive Alternative Acquisition Agreement with respect to such Acquisition Proposal, or shall have consummated any Acquisition Proposal (or the Company Board shall have approved or recommended to the Company’s stockholders generally after the date or otherwise not opposed any Acquisition Proposal) made by or on behalf of this Agreement, which becomes publicly known such Person or announced (and not publicly withdrawn), any of its Affiliates; and (B) within twelve (12) 12 months after such termination, the Company enters or any of Subsidiaries shall have entered into any a definitive Alternative Acquisition Agreement with respect to, or the Company Board shall have approved or recommended to the Company’s stockholders or otherwise not opposed, any Acquisition Proposal that is later consummated (regardless of whether or consummates any Acquisition Proposal not such consummation happens prior to or following the end of such 12 month period) (with “fifty percent (50%)” being substituted in lieu of “fifteen percent (15%)” in each instance thereof in the definition of “Acquisition Proposal”) provided, that solely for purposes of this Section 9.5(c)(i)(Bclause (i), the term “Acquisition Proposal” shall have the meaning ascribed thereto in Annex A, except that the reference to “15%” in such definition shall be replaced with a reference to “50%”), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds concurrently with the consummation of an such Acquisition Proposal.; (ii) by Parent pursuant to Section 9.4(b)(i), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds within two 9.4(b) (2) Business Days following the date of such termination and abandonment; (iii) by the Company pursuant to Section 9.3(b), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds immediately prior to or concurrently with such termination; or (d) The Parties acknowledge and agree that (i) in no event shall the Company be required to pay the Termination Fee on more than one occasion, (ii) the agreements set forth in this Section 9.5 and Section 9.3(b) are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other Parties would not enter into this Agreement and (iii) notwithstanding anything to the contrary set forth in this Agreement, other than in the case of actual fraud or knowing and intentional breach of this Agreement by the Company and subject to Section 10.7, in the event that the Termination Fee becomes payable by, and is paid or caused to be paid by, the Company, such fee shall be Parent’s sole and exclusive remedy for monetary damages or other relief pursuant to this Agreement. Accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 9.5, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the fees set forth in this Section 9.5 or any portion of such fees, the Company shall pay to Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented non-contingent attorneys’ fees) in connection with such suit, together with interest on the amount due pursuant to this Section 9.5 from the date such payment was required to be made until the date of payment at the annual rate of two percent (2%) plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made through the date of payment (or such lesser rate as is the maximum permitted by applicable Law).

Notice of Termination; Effect of Termination and Abandonment. (a) In the event the Company or Parent intends to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to Section 9.2, Section 9.3 ‎9.2 or Section 9.4‎9.3, as applicable, the Company or Parent, as applicable, shall give written notice to the other Party or Parties (as the case may be) specifying the provision or provisions of this Agreement pursuant to which such termination and abandonment is intended to be effected. (b) In the event this Agreement is terminated and the transactions contemplated by this Agreement are abandoned pursuant to this Article IX‎IX, this Agreement shall become void and of no effect with no liability to any Person on the part of any Party (or any of its Affiliates or its or their respective Representatives); provided, however, that: (i) subject to the terms set forth in Section ‎9.5(e), no such termination shall relieve any Party of any liability or damages to any other Party (A) resulting from any actual fraud or knowing Willful and intentional breach Material Breach of this Agreement or (B) as contemplated by Section 9.3(b), Section 9.5(c) and Section 9.5(d)such Party; and (ii) the provisions set forth in this Section 9.3(b9.5(b), this Section 9.5 7.12(a)(iv), Section 7.13(d), Section 9.5(c), Section 9.5(d), Section 9.5(e) and the second sentence of Section 10.1 Article X shall survive any termination of this Agreement and any abandonment of the transactions contemplated by this Agreement. Nothing ; and (iii) the Confidentiality Agreement and the Limited Guarantee shall limit or prevent survive any Party from exercising any rights or remedies it may have under Section 10.7 in lieu termination of terminating this Agreement pursuant to Article IX. As used in this Agreement, the phrase “knowing and intentional” means, accordance with respect to any act or omission, the taking of a deliberate act, or omission, which act constitutes in and of itself a material breach, with the actual knowledge that the taking of, or failure to take, such act would cause or constitute or would reasonably be expected to cause or constitute a breach of this Agreementtheir respective terms. (c) In the event this Agreement is terminated and the transactions contemplated by this Agreement abandoned pursuant to this Article IX‎IX: (i) by either the Company or Parent pursuant to Section 9.2(a) (but only if at such time of termination each of the conditions set forth in Section 8.1 are satisfied other than Section 8.1(a)‎9.2(a) or Section 9.2(b‎9.2(b) or by Parent pursuant to Section 9.4(a‎9.4(a) and, in each case: and (A) any Person or Group shall have made an Acquisition Proposal shall have been made to the Company Board or its the Special Committee, the Company or any Subsidiaries of the Company or to the stockholders generally after of the Company or publicly disclosed or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal prior to, and not publicly withdrawn at least two Business Days prior to (1) the date of termination and abandonment, with respect to any termination and abandonment pursuant to Section ‎9.2(a) or Section ‎9.4(a) or (2) the Company Stockholders Meeting (including any postponement, recess or adjournment thereof taken in accordance with this Agreement, which becomes publicly known or announced (and not publicly withdrawn), and with respect to termination and abandonment pursuant to Section ‎9.2(b) and (B) within twelve (12) months after any such terminationtermination and abandonment, (1) the Company enters or any of Subsidiaries shall have entered into an Alternative Acquisition Agreement for any Acquisition Proposal that is subsequently consummated (which, for this purpose shall include an Alternative Acquisition Agreement with respect to any Acquisition the Person submitting a Withdrawn Proposal or consummates its Affiliates), or (2) any Acquisition Proposal (which, for this purpose shall include an Alternative Acquisition Agreement with the Person submitting a Withdrawn Proposal or its Affiliates) shall have been consummated (with “fifty percent (50%)percent” being substituted in lieu of “fifteen percent (15%)twenty percent” in each instance thereof in the definition of “Acquisition Proposal”) ” referenced in the definition of “Alternative Acquisition Agreement” or otherwise for purposes of this Section 9.5(c)(i)(B‎9.5(c)(i)(B), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds concurrently with the consummation of an Acquisition Proposal. (ii) by Parent pursuant to Section 9.4(b)(i), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds within two five Business Days of the consummation of such Acquisition Proposal; (2ii) by the Company pursuant to Section ‎9.3(a) or Section ‎9.3(c), then the Parent shall pay or cause to be paid to the Company the Reverse Termination Fee by wire transfer of immediately available funds within five Business Days following the date of such termination and abandonment;termination; or (iii) by the Company pursuant to 9.3(b) or by Parent pursuant to Section 9.3(b‎9.4(b), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds immediately within (A) in the case of a termination and abandonment by the Company pursuant to Section ‎9.3(b), prior to or concurrently with such termination; or, and (B) in the case of a termination and abandonment by Parent pursuant to Section ‎9.4(b), within five Business Days following the date of such termination. (d) The Parties acknowledge and agree that (i) in no event shall the Company Parent be required to pay the Reverse Termination Fee on more than one occasion, occasion and (ii) the agreements set forth in this Section 9.5 and Section 9.3(b) ‎9.5 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other Parties would not enter into this Agreement and accordingly, if Parent (iii) notwithstanding anything or, if applicable, the Guarantor to the contrary set forth extent provided in this Agreement, other than in the case of actual fraud or knowing and intentional breach of this Agreement by the Company and subject to Section 10.7, in the event that terms of the Termination Fee becomes payable by, and is paid or caused to be paid by, the Company, such fee shall be Parent’s sole and exclusive remedy for monetary damages or other relief pursuant to this Agreement. Accordingly, if the Company Guarantee) fails to promptly pay or cause to be paid the amount Reverse Termination Fee if and to the extent the same becomes due and payable by Parent pursuant to this Section 9.5‎Article IX, and, in order to obtain such paymentamount, Parent the Company commences a suit Proceeding that results in a judgment against Parent (or, if applicable, the Company Guarantor to the extent provided in and subject to the terms of the Guarantee) for the fees set forth in this Section 9.5 Reverse Termination Fee (or any portion of such feesthereof), Parent (or, if applicable, the Company Guarantor to the extent provided in and subject to the terms of the Guarantee) shall pay or cause to Parent be paid to the Company its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented non-contingent attorneys’ fees) in connection with such suitProceeding, together with compounding interest on the amount due pursuant to this Section 9.5 from Reverse Termination Fee (or any portion thereof), as the date such payment was required to be made until the date of payment case may be, at the annual rate of two percent (2%) plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made through the date of payment (or such lesser rate as is the maximum permitted by applicable Law) (collectively, the “Company Recovery Costs”). Notwithstanding anything to the contrary in this Agreement, the Company’s right to receive from Parent (or, if applicable, the Guarantor to the extent provided in and subject to the terms of the Guarantee) the Reverse Termination Fee (and, if applicable, the Company Recovery Costs) shall, to the extent the Reverse Termination Fee (and, if applicable, the Company Recovery Costs) is owed, constitute the sole and exclusive remedy of the Company against the Non-Recourse Parties (as defined herein) affiliated with the Guarantor Parties, Parent or Merger Sub for any breach, loss or damage suffered by the Company or any Subsidiary or Affiliate thereof or any other Person as a result of or relating to or arising out of this Agreement or any agreement executed in connection herewith or the transactions contemplated hereby or thereby, including for any matters forming the basis for the termination of this Agreement and abandonment of the transactions contemplated hereby or thereby, provided that, notwithstanding anything to the contrary in this Agreement or any Transaction Documents, (x) nothing shall relieve the parties thereto of their obligations under the Confidentiality Agreement or relieve the Guarantor (to the extent provided in and subject to the terms of the Guarantee), Parent or Merger Sub from any liability or damages to the Company resulting from any actual fraud or Willful and Material Breach of the Guarantor (to the extent provided in and subject to the terms of the Guarantee), Parent or Merger Sub, which, for the avoidance of doubt, shall not be limited by the amount of the Reverse Termination Fee and the Company Recovery Costs, in the aggregate. Without limiting the foregoing, in no event will the Company or any Subsidiary or Affiliate thereof seek or obtain, nor will they permit any of their Representatives or any other Person acting on their behalf to seek or obtain, nor will any Person be entitled to seek or obtain, any recovery or award (other than the payment by Parent (or the Guarantor to the extent provided in and subject to the terms of the Guarantee) of the Reverse Termination Fee, the Company Recovery Costs, payments required to be made pursuant to Section ‎7.12(a)(iv) or any damages in respect of any actual fraud or Willful and Material Breach of the Guarantor (to the extent provided in and subject to the terms of the Guarantee), Parent, or Merger Sub, against any Non-Recourse Parties affiliated with the Guarantor Parties, Parent or Merger Sub, and in no event will the Company or any Subsidiary or Affiliate thereof seek or obtain, nor will they permit any of their Representatives or any other Person acting on their behalf to seek or obtain any monetary damages of any kind, including consequential, special, indirect or punitive damages (other than the payment by Parent (or the Guarantor to the extent provided in and subject to the terms of the Guarantee) of the Reverse Termination Fee, the Company Recovery Costs or payments required to be made pursuant to Section ‎7.12(a)(iv) or any damages in respect of any actual fraud or Willful and Material Breach of the Guarantor (to the extent provided in and subject to the terms of the Guarantee), Parent, or Merger Sub, in each case to the extent payable pursuant to the express terms of this Agreement or the Guarantee) against the Non-Recourse Parties affiliated with Guarantor Parties, Parent or Merger Sub as a result of or relating to or arising out of this Agreement or any agreement executed in connection herewith or the transactions contemplated hereby or thereby, including for any matters forming the basis for the termination of this Agreement and abandonment of the transactions contemplated hereby or thereby, provided that (w) nothing shall relieve the parties thereto of their obligations under the Confidentiality Agreement, (x) nothing contained herein shall limit the rights and remedies of the Company in the event of, or relieve the Guarantor (to the extent provided in and subject to the terms of the Guarantee), Parent or Merger Sub from, any liability or damages to the Company resulting from any actual fraud or Willful and Material Breach of the Guarantor, Parent or Merger Sub, and (y) nothing contained herein shall limit the rights and remedies of Parent or Merger Sub under the Debt Commitment Letter, the Equity Commitment Letter or the definitive agreements relating to the Debt Financing or the Equity Financing, nor limit Parent or Merger Sub (or any other party thereto other than the Company or any of its Subsidiaries) from seeking to recover any such damages or obtain equitable relief from or with respect to any Debt Financing Source or other financing source pursuant to the Debt Commitment Letter, the Equity Commitment Letter or the definitive agreements relating to the Debt Financing or the Equity Financing. Nothing in this Section ‎9.5(d) shall limit or otherwise affect the Company’s right to specific performance as provided in Section ‎10.7, except as provided in the following sentence. Notwithstanding anything in this Agreement or the Guarantee to the contrary, (A) while the Company may pursue both a grant of specific performance and payment of the Parent Termination Fee, under no circumstances shall the Company be entitled to receive both a grant of specific performance which results in the consummation of the Merger, on the one hand, and be awarded any monetary damages (including the Parent Termination Fee), on the other hand, and (B) in the event that the Company is entitled pursuant to this Agreement to both payment of any monetary damages (including monetary damages in respect of any actual fraud or Willful and Material Breach of the Guarantor, Parent, or Merger Sub) and payment of the Parent Termination Fee, the Parent Termination Fee to the extent paid shall reduce the damages to which the Company is entitled (if any) on a dollar for dollar basis. (e) The Parties acknowledge and agree that (i) in no event shall the Company be required to pay the Termination Fee on more than one occasion and (ii) the agreements set forth in this Section ‎9.5 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other Parties would not enter into this Agreement and accordingly, if the Company fails to promptly pay or cause to be paid the amount due pursuant to this ‎Article IX, and, in order to obtain such amount, Parent commences a Proceeding that results in a judgment against the Company for the Termination Fee (or any portion thereof), the Company shall pay or cause to be paid to Parent its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) in connection with such Proceeding, together with compounding interest on the Termination Fee (or any portion thereof), as the case may be, at the annual rate of two percent (2%) plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made through the date of payment (or such lesser rate as is the maximum permitted by applicable Law) (collectively, the “Parent Recovery Costs”). Notwithstanding anything to the contrary in this Agreement, Parent’s right to receive from the Company the Termination Fee (and, if applicable, the Parent Recovery Costs) shall, to the extent the Termination Fee (and, if applicable, the Parent Recover Costs) is owed, constitute the sole and exclusive remedy of Parent or Merger Sub against the Non-Recourse Parties (as defined herein) affiliated with the Company for any breach, loss or damage suffered by Parent or any Subsidiary or Affiliate thereof or any other Person as a result of or relating to or arising out of this Agreement or any agreement executed in connection herewith or the transactions contemplated hereby or thereby, including for any matters forming the basis for the termination of this Agreement and abandonment of the transactions contemplated hereby or thereby, provided that, notwithstanding anything to the contrary in this Agreement or any Transaction Documents, (x) nothing shall relieve the parties thereto of their obligations under the Confidentiality Agreement or relieve the Company from any liability or damages to Parent or Merger Sub resulting from any actual fraud or Willful and Material Breach of the Company or any of its Subsidiaries and (y) the Company shall remain liable for any liability or damages to Parent or Merger Sub resulting from any actual fraud or Willful and Material Breach of the Company or any of its Subsidiaries (which, for the avoidance of doubt, shall not be limited by the amount of Termination Fee and the Parent Recovery Cost, in the aggregate).

Notice of Termination; Effect of Termination and Abandonment. (a) In the event the Company or Parent intends to terminate this Agreement and abandon the transactions contemplated by this Agreement Transactions pursuant to Section 9.2, Section 9.3 (other than Section 9.3(b)) or Section 9.4, as applicable, the Company or Parent, as applicable, shall give written notice to the other Party or Parties (as the case may be) specifying the provision or provisions of this Agreement pursuant to which such termination and abandonment is intended to be effected. (b) In the event this Agreement is terminated and the transactions contemplated by this Agreement Transactions are abandoned pursuant to this Article IX, this Agreement shall become void and of no effect with no liability to any Person on the part of any Party (or any of its Affiliates or its or their respective Representatives); provided, however, that: , subject in the case of Parent and Merger Sub to Section 9.5(d) and Section 9.5(e), (i) no such termination shall relieve any Party of any liability or damages to any other Party (A) resulting from any actual fraud or knowing willful and intentional material breach of this Agreement or (B) as contemplated by Section 9.3(b), Section 9.5(c) and Section 9.5(d); and (ii) the provisions set forth in Section 9.3(b), this Section 9.5 and the second sentence of Section 10.1 shall survive any termination of this Agreement and any abandonment of the transactions contemplated by this Agreement. Nothing shall limit or prevent any Party from exercising any rights or remedies it may have under Section 10.7 in lieu of terminating this Agreement pursuant to Article IX. As used in this Agreement, the phrase “knowing and intentional” means, with respect to any act or omission, the taking of a deliberate act, or omission, which act constitutes in and of itself a material breach, with the actual knowledge that the taking of, or failure to take, such act would cause or constitute or would reasonably be expected to cause or constitute a breach of this AgreementTransactions. (c) In the event this Agreement is terminated and the transactions contemplated by this Agreement Transactions abandoned pursuant to this Article IX: (i) by either the Company or Parent pursuant to Section 9.2(a) (but only if at such time of termination each of the conditions set forth in Section 8.1 are satisfied other than Section 8.1(a)) or Section 9.2(b) or by Parent pursuant to Section 9.4(a) and, in each case: : (A) any Person or Group shall have made an Acquisition Proposal to following the Company or its stockholders generally after the date execution of this Agreement, which becomes a bona fide Acquisition Proposal (whether or not conditional or not withdrawn) shall have been made to the Company Board or publicly known disclosed or any Person shall have publicly announced an intention (and whether or not publicly conditional or not withdrawn), and ) to make an Acquisition Proposal; (B) within twelve (12) months after at the time of such termination, the condition set forth in clause (c) of the Offer Conditions has been satisfied or is capable of being satisfied; and (C) within twelve months after any such termination and abandonment, (1) the Company enters or any of Subsidiaries shall have entered into any an Alternative Acquisition Agreement with respect to Agreement, or (2) any Acquisition Proposal or consummates any Acquisition Proposal shall have been consummated (with “fifty percent (50%)percent” being substituted in lieu of “fifteen percent (15%)percent” in each instance thereof in the definition of “Acquisition Proposal”) ” referenced in the definition of “Alternative Acquisition Agreement” or otherwise for purposes of this Section 9.5(c)(i)(B9.5(c)(i)(C)), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds concurrently with the consummation occurrence of an Acquisition Proposal.any of the events contemplated by this Section 9.5(c)(i)(C), whichever is the earliest to occur; (ii) by Parent pursuant to Section 9.4(b)(i9.4(b), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds upon entry into an Alternative Acquisition Agreement (if applicable) or otherwise within two (2) Business Days following the date of such termination and abandonment;; or (iii) by the Company pursuant to Section 9.3(b9.3(a) or Section 9.3(c), then the Company Parent shall pay or cause to be paid to the Company the Parent the Termination Fee by wire transfer of immediately available funds immediately prior to or concurrently with within two Business Days following the date of such termination; ortermination and abandonment. (d) The Parties acknowledge and agree that (i) in no event shall the Company be required to pay the Termination Fee or Parent to pay the Parent Termination Fee on more than one occasion, (ii) the agreements set forth in this Section 9.5 and Section 9.3(b) are an integral part of the transactions contemplated by this Agreement Transactions and that, without these agreements, the other Parties would not enter have entered into this Agreement and accordingly, if the Company or Parent fails to promptly pay or cause to be paid the amounts due pursuant to this Article IX, and, in order to obtain such amount, Parent or Company (as applicable) commences a Proceeding that results in a judgment against the Company for the Termination Fee or against Parent for the Parent Termination Fee (or any portion thereof), the Company shall pay or cause to be paid to Parent or Parent shall pay or cause to be paid to the Company (as applicable) its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) in connection with such Proceeding, together with interest on the Termination Fee or the Parent Termination Fee (or any portion thereof), as the case may be, at the prime rate published in The Wall Street Journal in effect on the date such amounts were required to be made from such date through the date of payment (collectively, “Enforcement Costs”) and (iii) notwithstanding anything to the contrary set forth in this Agreement, other than in the case of actual fraud or knowing and intentional breach of this Agreement by the Company and subject to Section 10.7, in the event that the Termination Fee or the Parent Termination Fee becomes payable by, and is paid or caused to be paid by, the CompanyCompany or Parent (as the case may be), such fee shall be Parent’s or the Company’s sole and exclusive remedy for monetary damages or other relief (including specific performance) pursuant to this Agreement. Accordingly; provided, if however, that any such payment shall not relieve the Company fails of any liability or damages incurred or suffered by Parent or Merger Sub to promptly pay the amount due extent that such liability or damages were the result of or arise out of any fraud or willful and material breach of this Agreement (including with respect to willful and material breaches of this Agreement pursuant to which the Termination Fee shall have become or becomes payable pursuant to this Section 9.5, andArticle IX), in order which case Parent and/or Merger Sub shall be entitled to obtain such paymentall rights and remedies available in equity or at law, in contract, in tort or otherwise. The Termination Fee or the Parent commences a suit that results in a judgment against the Company for the fees set forth in this Section 9.5 or any portion of such feesTermination Fee, the Company shall pay as applicable, if, as and when required to Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented non-contingent attorneys’ fees) in connection with such suit, together with interest on the amount due be paid pursuant to this Section 9.5 from shall not constitute a penalty but rather liquidated damages in a reasonable amount that shall compensate the date Party receiving such amount in the circumstances in which it is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger. (e) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 10.7, each of the Parties acknowledges and agrees that the Company’s right to terminate this Agreement and receive payment was required of the Parent Termination Fee to the extent that it is payable pursuant to Section 9.5(c)(iii) (including, without duplication, pursuant to the Company’s right to enforce the Limited Guarantees solely with respect thereto), together with any Enforcement Costs pursuant to Section 9.5(d) and any Reimbursement Obligations, shall constitute the sole and exclusive remedy of the Company and its Subsidiaries and their respective Affiliates and any of their respective former, current or future general or limited partners, stockholders, equityholders, members, managers, directors, officers, employees, agents or Affiliates (collectively, the “Company Related Parties”) against Parent, the Investors and their respective Affiliates and any of their respective former, current or future general or limited partners, stockholders, equityholders, members, managers, directors, officers, employees, agents, financing sources or Affiliates or any former, current or future general or limited partner, stockholder, equityholder, member, manager, director, officer, employee, agent, financing source or Affiliate of any of the foregoing (collectively, the “Parent Related Parties”) for any and all losses and damages in respect of this Agreement (or the termination thereof) or the Transactions (or the failure of such transactions to occur for any reason or for no reason) or any breach or threatened or alleged breach of (whether willful, intentional, unilateral or otherwise), or failure or threatened or alleged failure to perform under, any covenant or agreement or otherwise in respect of this Agreement or any oral representation made or alleged to be made until in connection herewith, and, subject to Parent’s obligation to pay the date Parent Termination Fee to the Company to the extent it is payable pursuant to Section 9.5(c)(iii), together with any Enforcement Costs pursuant to Section 9.5(d) and any Reimbursement Obligations, none of payment the Parent Related Parties shall have any liability or obligation to any of the Company Related Parties arising out of, relating to or in connection with this Agreement, the Limited Guarantees (subject to the Company’s rights to enforce the Limited Guarantees), the Equity Commitment Letters or the Transactions or thereby and, except as provided in Section 10.7, none of the Company Related Parties shall seek to 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 losses or damages suffered in connection with this Agreement or the annual rate of two percent (2%) plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required Transactions or any oral representation made or alleged to be made through in connection herewith or therewith (except, in all cases, that (i) the date Parent Related Parties shall remain obligated with respect to the Confidentiality Agreement and Section 10.3 (with respect to the expenses of payment Parent and Merger Sub); and (ii) the parties to the Limited Guarantees shall remain obligated, and the Company and its Subsidiaries may be entitled to remedies, with respect to the Limited Guarantees (to the extent provided therein)). In no event shall any Parent Related Party be subject to (nor shall any Company Related Party seek to recover) monetary damages other than the Parent Termination Fee to the extent that it is payable pursuant to Section 9.5(c)(iii), together with any Enforcement Costs pursuant to Section 9.5(d) and Reimbursement Obligations, for any losses, damages or other liabilities arising out of, relating to or in connection with breaches by Parent of its representations, warranties, covenants and agreements contained in this Agreement or arising from any claim or cause of action that any Company Related Party may have, or in respect of any oral representation made or alleged to be made in connection herewith (except, in all cases, that (i) the Parent Related Parties shall remain obligated with respect to the Confidentiality Agreement and Section 10.3 (with respect to the expenses of Parent and Merger Sub); and (ii) the parties to the Limited Guarantees shall remain obligated, and the Company and its Subsidiaries may be entitled to remedies, with respect to the Limited Guarantees (to the extent provided therein)). Notwithstanding anything to the contrary set forth in this Agreement, in no event shall the Company be entitled to receive both the Parent Termination Fee pursuant to Section 9.5(c)(iii) and specific performance under Section 10.7 to cause the consummation of the Transactions. (f) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 10.7 and the proviso in the first sentence of Section 9.5(d), each of the Parties acknowledges and agrees that Parent’s receipt of the Termination Fee to the extent that it is payable pursuant to Section 9.3(b) or Section 9.5(c), together with any Enforcement Costs pursuant to Section 9.5(d), shall constitute the sole and exclusive remedy of the Parent Related Parties against the Company Related Parties for any and all losses and damages in respect of this Agreement (or the termination thereof) or the Transactions (or the failure of such lesser rate transactions to occur for any reason or for no reason) or any breach or threatened or alleged breach of (whether willful, intentional, unilateral or otherwise), or failure or threatened or alleged failure to perform under, 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, subject to the Company’s obligation to pay the Termination Fee to Parent to the extent that it is payable pursuant to Section 9.3(b) or Section 9.5(c), together with any Enforcement Costs pursuant to Section 9.5(d), none of the Company Related Parties shall have any liability or obligation to any of the Parent Related Parties arising out of, relating to or in connection with this Agreement or the Transactions and, except as is provided in Section 10.7, no Parent Related Party shall seek to 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 losses or damages suffered in connection with this Agreement or the maximum permitted Transactions or any oral representation made or alleged to be made in connection herewith or therewith (except, in all cases, that the Company shall remain obligated with respect to the Confidentiality Agreement and Section 10.3 (with respect to the expenses of the Company)). Notwithstanding anything to the contrary set forth in this Agreement, in no event shall Parent be entitled to receive both the Termination Fee pursuant to Section 9.5(c)(ii) and specific performance under Section 10.7 to cause the consummation of the Transactions. For the avoidance of doubt and notwithstanding anything to the contrary herein, the payment of the Termination Fee and Enforcement Costs (if any) shall not relieve the Company of any liability or damages incurred or suffered by applicable LawParent or Merger Sub to the extent that such liability or damages were the result of or arise out of any fraud or willful and material breach of this Agreement (including with respect to willful and material breaches of this Agreement pursuant to which the Termination Fee shall have become or becomes payable pursuant to this Article IX), in which case Parent and/or Merger Sub shall be entitled to all rights and remedies available in equity or at law, in contract, in tort or otherwise.