Common use of Effect of Termination; Termination Fee Clause in Contracts

Effect of Termination; Termination Fee. (a) In the event of termination of this Agreement pursuant to Section 10.01, this Agreement shall forthwith become null and void and have no effect, without any Liability on the part of any Party hereto; provided, however, that the last sentence of Section 5.03(b) and the provisions of Section 5.14, Section 5.16(c), this Section 10.02 and Article XI hereof shall survive any termination of this Agreement. The Confidentiality Agreement shall not be affected by a termination of this Agreement. (b) In the event that this Agreement is terminated (i) by Parent pursuant to Section 10.01(e) or Section 10.01(f) or (ii) by Parent or Buyer pursuant to Section 10.01(c) at a time when this Agreement was terminable by Parent pursuant to Section 10.01(e) (determined without regard to any applicable cure period otherwise available thereunder) or Section 10.01(f), then, in either case, Holdings shall, or shall cause Buyer to, promptly, but in no event later than five (5) Business Days after the date of such termination, pay or cause to be paid to Parent or its designees an amount equal to $26,250,000.00 (the “Termination Fee”) by wire transfer of immediately available funds. If Holdings or Buyer fails to pay the Termination Fee when due, and, in order to obtain such payment, Parent commences an Action that results in a judgment against Holdings or Buyer for the Termination Fee, Holdings shall, or shall cause Buyer to, pay to Parent, together with the Termination Fee, (A) interest on the Termination Fee from the date of termination of this Agreement at a rate per annum equal to the Prime Rate and (B) Parent’s costs and expenses (including reasonable attorneys’ fees) in connection with such Action. Without limiting Parent’s right to obtain an award of specific performance permitted by Section 11.09, solely for purposes of establishing the basis for the amount thereof, and without in any way increasing the amount of the Termination Fee or expanding the circumstances in which the Termination Fee is to be paid, it is agreed that the Termination Fee is a liquidated damage, and not a penalty. For the avoidance of doubt, in no event shall Holdings or Buyer be required to pay the Termination Fee on more than one occasion. Notwithstanding anything to the contrary, in the event that the Closing does not occur solely as a result of Parent’s breach of the Parent Backstop and this Agreement is terminated in such a way as would give rise to payment of a Termination Fee, no such Termination Fee shall be due or owing. (c) In the event that this Agreement is terminated pursuant to Section 10.01(e) or Section 10.01(f), or pursuant to Section 10.01(c) at a time when this Agreement was terminable by Parent pursuant to Section 10.01(e) or Section 10.01(f), Parent’s receipt of the Termination Fee from Holdings or Buyer pursuant to Section 10.02(b) and the payment of any other amounts due pursuant to the last sentence of Section 5.03(b), Section 5.16(c) and Section 10.02(b) shall be the sole and exclusive remedy of Parent and the Sellers against Holdings and Buyer and 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, assignees of each of Holdings and Buyer, and 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, assignees of any of the foregoing (the Persons described in this Section 10.02(c)(i), collectively, the “Buyer Group”) for any Damages suffered as a result of any breach of any representation, warranty, covenant or agreement set forth herein, or the failure of the transactions contemplated by this Agreement to be consummated.

Effect of Termination; Termination Fee. (a) In the event of the termination and abandonment of this Agreement pursuant to Section 10.0110.1 of this Agreement, this the Agreement shall forthwith become null and void terminate and have no effect, without any Liability on the part of any Party hereto; provided, however, except as otherwise provided herein and except that the last sentence of Section 5.03(b) and the provisions of this Section 5.1410.2, Section 5.16(c), this Section 10.02 10.5 and Article XI hereof 11 of this Agreement shall survive any such termination of this Agreement. The Confidentiality Agreement shall not be affected by a termination of this Agreementand abandonment. (b) In If, after the event that date of this Agreement is terminated Agreement, (i) by Parent pursuant to Section 10.01(eSun terminates this Agreement in accordance with Sections 10.1(g) or Section 10.01(f) 10.1(i), or (ii) by Parent an Acquisition Transaction (as defined below) is offered, presented or Buyer pursuant proposed to Section 10.01(c) at a time when Community or its shareholders, and thereafter this Agreement was terminable and the Merger are disapproved by Parent pursuant Community or by the shareholders of Community, an Acquisition Transaction is consummated or a definitive agreement is entered into by Community relating to an Acquisition Transaction (each of (i) and (ii) being a "Trigger Event"), then immediately upon the occurrence of a Trigger Event and in addition to any other rights and remedies of Sun, Community shall pay Sun a cash amount of $3,250,000 as an agreed-upon termination fee plus reimbursement to Sun for its expenses incurred in negotiation and pursuit of the Agreement and the related transactions contemplated thereunder, including but not limited to fees and expenses of its legal counselors, investment advisors, accountants and related professionals and costs associated with such transaction and process (collectively, the "Termination Fee"). For purposes of this Section 10.01(e10.2, "Acquisition Transaction" shall, with respect to Community, mean any of the following: (a) a merger or consolidation, or any similar transaction (other than the Merger) of any company with either Community or Community Bank, (b) a purchase, lease or other acquisition of all or substantially all the assets of either Community or Community Bank, (c) a purchase or other acquisition of "beneficial ownership" by any "person" or "group" (as such terms are defined in Section 13(d)(3) of the Securities Exchange Act) (determined without regard to any applicable cure period otherwise available thereunder) or Section 10.01(f)including by way of merger, thenconsolidation, in either case, Holdings shallshare exchange, or shall otherwise) which would cause Buyer to, promptly, but in no event later than five (5) Business Days after such person or group to become the date beneficial owner of such termination, pay securities representing 15% or cause to be paid to Parent more of the voting power of either Community or its designees an amount equal to $26,250,000.00 (the “Termination Fee”) by wire transfer Community Bank or any significant subsidiary of immediately available funds. If Holdings or Buyer fails to pay the Termination Fee when due, and, in order to obtain such payment, Parent commences an Action that results in a judgment against Holdings or Buyer for the Termination Fee, Holdings shallCommunity, or shall cause Buyer to, pay (d) a tender or exchange offer to Parent, together with the Termination Fee, (A) interest on the Termination Fee from the date of termination of this Agreement at a rate per annum equal to the Prime Rate and (B) Parent’s costs and expenses (including reasonable attorneys’ fees) in connection with such Action. Without limiting Parent’s right to obtain an award of specific performance permitted by Section 11.09, solely for purposes of establishing the basis for the amount thereof, and without in any way increasing the amount acquire securities representing 15% or more of the Termination Fee or expanding the circumstances in which the Termination Fee is to be paid, it is agreed voting power of Community. (c) Community and Sun agree that the Termination Fee is fair and reasonable in the circumstances. If a liquidated damagecourt of competent jurisdiction shall nonetheless, and not by a penalty. For final, nonappealable judgment, determine that the avoidance amount of doubt, in no event shall Holdings or Buyer be required to pay the any such Termination Fee on more than one occasion. Notwithstanding anything to exceeds the contrarymaximum amount permitted by law, in then the event that the Closing does not occur solely as a result amount of Parent’s breach of the Parent Backstop and this Agreement is terminated in such a way as would give rise to payment of a Termination Fee, no such Termination Fee shall be due or owing. (c) In the event that this Agreement is terminated pursuant to Section 10.01(e) or Section 10.01(f), or pursuant to Section 10.01(c) at a time when this Agreement was terminable by Parent pursuant to Section 10.01(e) or Section 10.01(f), Parent’s receipt of the Termination Fee from Holdings or Buyer pursuant to Section 10.02(b) and the payment of any other amounts due pursuant reduced to the last sentence maximum amount permitted by law in the circumstances, as determined by such court of Section 5.03(b), Section 5.16(c) and Section 10.02(b) shall be the sole and exclusive remedy of Parent and the Sellers against Holdings and Buyer and 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, assignees of each of Holdings and Buyer, and 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, assignees of any of the foregoing (the Persons described in this Section 10.02(c)(i), collectively, the “Buyer Group”) for any Damages suffered as a result of any breach of any representation, warranty, covenant or agreement set forth herein, or the failure of the transactions contemplated by this Agreement to be consummatedcompetent jurisdiction.

Effect of Termination; Termination Fee. (a) In the event of the termination and abandonment of this Agreement pursuant to Section 10.0110.1, this the Agreement shall forthwith become null and void terminate and have no effect, without any Liability on the part of any Party hereto; provided, however, except as otherwise provided herein and except that the last sentence of Section 5.03(b) and the provisions of this Section 5.1410.2, Section 5.16(c), this Section 10.02 10.5 and Article XI hereof 11 of this Agreement shall survive any such termination of this Agreement. The Confidentiality Agreement shall not be affected by a termination of this Agreementand abandonment. (b) In If, after the event that date of this Agreement is terminated Agreement, (i) by Parent pursuant to Sun terminates this Agreement in accordance with Section 10.01(e10.1(g), or (ii) or Advantage terminates this Agreement in accordance with Section 10.01(f10.1(i), (either of (i) or (ii) by Parent or Buyer pursuant to Section 10.01(c) at being a time when this Agreement was terminable by Parent pursuant to Section 10.01(e) (determined without regard "Trigger Event"), then immediately upon the occurrence of a Trigger Event and in addition to any applicable cure period otherwise available other rights and remedies of Sun, Advantage shall reimburse Sun for its expenses incurred in negotiation and pursuit of the Agreement and the related transactions contemplated thereunder, including but not limited to fees and expenses of its legal counselors, investment advisors, accountants and related professionals and costs associated with such transaction and process (the "Transaction Expenses") not to exceed $375,000, and if an Acquisition Transaction (as defined below) is consummated or Section 10.01(f), thena definitive agreement is entered into by Advantage relating to an Acquisition Transaction, in either casecase within 18 months following a Trigger Event (a "Subsequent Trigger Event"), Holdings then immediately upon the occurrence of a Subsequent Trigger Event and in addition to any other rights and remedies of Sun, Advantage shall pay Sun a cash amount of $1.48 million as an agreed-upon termination fee and reimburse Sun for its Transaction Expenses not to exceed $250,000, less any Transaction Expenses already reimbursed pursuant to this Section 10.2(b) (collectively, the "Termination Fee"). For purposes of this Section 10.2, "Acquisition Transaction" shall, with respect to Advantage, mean any of the following: (a) a merger or shall cause Buyer to, promptly, but in no event later than five (5) Business Days after the date of such termination, pay or cause to be paid to Parent or its designees an amount equal to $26,250,000.00 (the “Termination Fee”) by wire transfer of immediately available funds. If Holdings or Buyer fails to pay the Termination Fee when due, and, in order to obtain such payment, Parent commences an Action that results in a judgment against Holdings or Buyer for the Termination Fee, Holdings shallconsolidation, or shall cause Buyer to, pay to Parent, together any similar transaction (other than the Merger) of any company with the Termination FeeAdvantage, (Ab) interest on a purchase, lease or other acquisition of all or substantially all the Termination Fee from assets of Advantage, (c) a purchase or other acquisition of "beneficial ownership" by any "person" or "group" (as such terms are defined in Section 13(d)(3) of the date Securities Exchange Act of termination of this Agreement at a rate per annum equal to the Prime Rate and (B1934, as amended) Parent’s costs and expenses (including reasonable attorneys’ feesby way of merger, consolidation, share exchange, or otherwise) in connection with which would cause such Action. Without limiting Parent’s right person or group to obtain an award become the beneficial owner of specific performance permitted by Section 11.09, solely for purposes of establishing the basis for the amount thereof, and without in any way increasing the amount securities representing 10% or more of the Termination Fee voting power of Advantage, or expanding (d) a tender or exchange offer to acquire securities representing 10% or more of the circumstances in which the Termination Fee is to be paid, it is agreed voting power of Advantage. (c) Advantage and Sun agree that the Termination Fee is fair and reasonable in the circumstances. If a liquidated damagecourt of competent jurisdiction shall nonetheless, and not by a penalty. For final, nonappealable judgment, determine that the avoidance amount of doubt, in no event shall Holdings or Buyer be required to pay the any such Termination Fee on more than one occasion. Notwithstanding anything to exceeds the contrarymaximum amount permitted by law, in then the event that the Closing does not occur solely as a result amount of Parent’s breach of the Parent Backstop and this Agreement is terminated in such a way as would give rise to payment of a Termination Fee, no such Termination Fee shall be due or owing. (c) In the event that this Agreement is terminated pursuant to Section 10.01(e) or Section 10.01(f), or pursuant to Section 10.01(c) at a time when this Agreement was terminable by Parent pursuant to Section 10.01(e) or Section 10.01(f), Parent’s receipt of the Termination Fee from Holdings or Buyer pursuant to Section 10.02(b) and the payment of any other amounts due pursuant reduced to the last sentence maximum amount permitted by law in the circumstances, as determined by such court of Section 5.03(b), Section 5.16(c) and Section 10.02(b) shall be the sole and exclusive remedy of Parent and the Sellers against Holdings and Buyer and 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, assignees of each of Holdings and Buyer, and 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, assignees of any of the foregoing (the Persons described in this Section 10.02(c)(i), collectively, the “Buyer Group”) for any Damages suffered as a result of any breach of any representation, warranty, covenant or agreement set forth herein, or the failure of the transactions contemplated by this Agreement to be consummatedcompetent jurisdiction.

Effect of Termination; Termination Fee. (a) In the event of a valid termination of this Agreement pursuant to Section 10.0111.1, this Agreement shall forthwith become null and void and have no effect, without any Liability liability on the part of Buyer, the Company, Seller or any of their respective Affiliates, directors, officers, employees, partners, managers, members, equityholders or other Representatives, and all rights and obligations of any Party hereto; providedhereto shall cease, however, except that the last sentence of provisions contained in this Section 5.03(b11.2, Section 7.1 (Confidentiality), Section 7.3 (Press Releases) and the provisions of Section 5.14, Section 5.16(c), this Section 10.02 and Article XI hereof XII shall survive any the termination of this Agreement. The Confidentiality Agreement shall not be affected by a termination and, subject to the following provisions of this AgreementSection 11.2, no such termination shall relieve any Party hereto from any liability as a result of its material and willful breach of this Agreement prior to such termination. (b) In the event that If this Agreement is validly terminated by Seller pursuant to (i) by Parent pursuant to Section 10.01(e11.1(d), (ii) or Section 10.01(f11.1(e) or (iiiii) by Parent or Buyer pursuant to Section 10.01(c11.1(b) at a time when Seller would have been entitled to terminate this Agreement was terminable by Parent pursuant to Section 10.01(e) (determined without regard to any applicable cure period otherwise available thereunder) or Section 10.01(f11.1(e), then, in either case, Holdings shall, or Buyer shall cause Buyer to, promptly, but in no event later than five (5) Business Days after the date pay to Seller a fee of such termination, pay or cause to be paid to Parent or its designees an amount equal to $26,250,000.00 18,900,000 (the “Termination Fee”) ), by wire transfer of immediately available funds. If Holdings or Buyer fails to pay the Termination Fee when due, and, in order to obtain such payment, Parent commences an Action that results in a judgment against Holdings or Buyer for the Termination Fee, Holdings shall, or shall cause Buyer to, pay to Parent, together with the Termination Fee, (A) interest on the Termination Fee from the date of termination of this Agreement at a rate per annum equal to the Prime Rate and (B) Parent’s costs and expenses (including reasonable attorneys’ fees) in connection with such Action. Without limiting Parent’s right to obtain an award of specific performance permitted by Section 11.09, solely for purposes of establishing the basis for the amount thereof, and without in any way increasing the amount of the Termination Fee or expanding the circumstances in which the Termination Fee is payment to be paid, it made within three (3) Business Days after notice of such termination by Seller is agreed delivered to Buyer. The Parties acknowledge and hereby agree that the Termination Fee is a liquidated damage, and not a penalty. For the avoidance of doubt, in no event shall Holdings or Buyer be required to pay the Termination Fee on more than one occasion, whether or not the Termination Fee may be payable under more than one provision of this Agreement at the same or at different times or for the occurrence of different events. (c) The Parties acknowledge and hereby agree that the Termination Fee if, as and when required to be paid in accordance with Section 11.2(b), shall not constitute a penalty but will be liquidated damages, in a reasonable amount that will compensate the 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 transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. (d) Each of the Parties acknowledges that the agreements contained in this Section 11.2 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the Parties would not enter into this Agreement. Notwithstanding anything to the contrarycontrary herein, in the event that Seller may pursue both a grant of specific performance under Section 12.12 to consummate the Closing does not occur solely as a result of Parent’s breach of and the Parent Backstop and this Agreement is terminated in such a way as would give rise to payment of a Termination Fee, no such Termination Fee shall be due or owing. (c) In the event that this Agreement is terminated pursuant to Section 10.01(e) or Section 10.01(f), or pursuant to Section 10.01(c) at a time when this Agreement was terminable by Parent pursuant to Section 10.01(e) or Section 10.01(f), Parent’s receipt of the Termination Fee from Holdings under Section 11.2(b), but under no circumstances shall Seller be permitted or entitled to receive both a grant of specific performance under Section 12.12 to consummate the Closing and an award of money damages for failure to consummate the Closing, including all or any portion of the Termination Fee. (e) Notwithstanding anything to the contrary in this Agreement, but subject to Section 11.2(f), if Parent or Buyer breaches this Agreement (whether such breach is intentional and material, unintentional, willful or otherwise) or fails to perform hereunder (whether such failure is intentional and material, unintentional, willful or otherwise), the Seller’s and the Company’s rights to: (i) seek an injunction, specific performance or other equitable relief in accordance with the terms and limitations of Section 12.12; or (ii) terminate this Agreement and receive the Termination Fee if payable pursuant to Section 10.02(b) and the payment of any other amounts due pursuant to the last sentence of Section 5.03(b), Section 5.16(c) and Section 10.02(b11.2(b) shall be the sole and exclusive remedy of Parent and the Sellers against Holdings and Buyer and the formerremedies (whether such remedies are sought in equity or at law, current and future holders of any equityin contract, partnership in tort or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders, assignees of each of Holdings and Buyer, and 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, assignees of any otherwise) of the foregoing (the Persons described in this Section 10.02(c)(i), collectivelySeller, the “Company or any other Person against the Buyer Group”) Related Parties or the Debt Financing Sources for any Damages suffered as a result losses arising out of or related to this Agreement (or any breach of any representation, warranty, covenant covenant, agreement or agreement set forth obligation contained herein), or the failure of the transactions contemplated by this Agreement (or any failure of such transactions to be consummated), the Debt Commitment Letter, the Debt Financing contemplated therein (or any failure of such financings to be consummated), or in respect of any oral representations made or alleged to be made in connection with this Agreement, the Debt Commitment Letter, the transactions contemplated herein or therein or otherwise; provided that in no event shall Buyer or Parent have any monetary liability or obligations in connection with the transactions contemplated by this Agreement in the aggregate in excess of the amount of the Termination Fee and in no event shall the Seller, the Company or any Related Party of the Company or the Seller seek, directly or indirectly, to recover against any Debt Financing Sources or Buyer Related Parties, or compel payment by any Debt Financing Sources or Buyer Related Parties of, any damages or other payments. (f) Nothing in this Section 11.2 will limit the right of Seller or the Company to bring or maintain, or receive damages in any Proceeding arising out of or in connection with any breach of the Non-Disclosure Agreement or, following the Closing, any post-Closing covenant.

Effect of Termination; Termination Fee. (a) In the event of the termination and abandonment of this Agreement pursuant to Section 10.1, the Agreement shall terminate and have no effect, except as otherwise provided herein and except that the provisions of this Section 10.2, Section 10.5 and Article 11 of this Agreement shall survive any such termination and abandonment. (b) In the event of termination of this Agreement pursuant to Section 10.0110.1, except as provided in Section 10.2(c) and (d) below, whether or not the Merger are consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall forthwith become null and void and have no effect, without any Liability on be paid by the part party incurring such expenses. In the event of any Party hereto; provided, however, that the last sentence of Section 5.03(b) and the provisions of Section 5.14, Section 5.16(c), this Section 10.02 and Article XI hereof shall survive any termination of this Agreement. The Confidentiality Agreement shall not be affected by a termination of this Agreement. (b) In the event that this Agreement is terminated (i) by Parent pursuant to Section 10.01(e) or Section 10.01(f) or (ii) by Parent or Buyer pursuant to Section 10.01(c) at a time when this Agreement was terminable by Parent pursuant to Section 10.01(e) (determined without regard to any applicable cure period otherwise available thereunder) or Section 10.01(f), then, in either case, Holdings shall, or shall cause Buyer to, promptly, but in no event later than five (5) Business Days after the date of such termination, pay or cause to be paid to Parent or its designees an amount equal to $26,250,000.00 (the “Termination Fee”) by wire transfer of immediately available funds. If Holdings or Buyer fails to pay the Termination Fee when due, and, in order to obtain such payment, Parent commences an Action that results in a judgment against Holdings or Buyer for the Termination Fee, Holdings shall, or shall cause Buyer to, pay to Parent, together with the Termination Fee, (A) interest on the Termination Fee from the date of termination of this Agreement at a rate per annum equal to the Prime Rate and (B) Parent’s costs and expenses (including reasonable attorneys’ fees) in connection with such Action. Without limiting Parent’s right to obtain an award of specific performance permitted by Section 11.09, solely for purposes of establishing the basis for the amount thereof, and without in any way increasing the amount of the Termination Fee or expanding the circumstances in which the Termination Fee is to be paid, it is agreed that the Termination Fee is a liquidated damage, and not a penalty. For the avoidance of doubt, in no event shall Holdings or Buyer be required to pay the Termination Fee on more than one occasion. Notwithstanding anything to the contrary, in the event that the Closing does not occur solely as a result of Parent’s breach of the Parent Backstop and this Agreement is terminated in such a way as would give rise to payment because of a Termination Fee, no such Termination Fee shall be due or owing. (c) In the event that this Agreement is terminated pursuant to Section 10.01(e) or Section 10.01(f), or pursuant to Section 10.01(c) at a time when this Agreement was terminable by Parent pursuant to Section 10.01(e) or Section 10.01(f), Parent’s receipt of the Termination Fee from Holdings or Buyer pursuant to Section 10.02(b) and the payment of any other amounts due pursuant to the last sentence of Section 5.03(b), Section 5.16(c) and Section 10.02(b) shall be the sole and exclusive remedy of Parent and the Sellers against Holdings and Buyer and 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, assignees of each of Holdings and Buyer, and 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, assignees of any of the foregoing (the Persons described in this Section 10.02(c)(i), collectively, the “Buyer Group”) for any Damages suffered as a result of any willful breach of any representation, warranty, covenant or agreement set forth hereincontained in this Agreement, the breaching party shall remain liable for any and all damages, costs and expenses, including all reasonable attorneys’ fees, sustained or incurred by the non-breaching party as a result thereof or in connection therewith or with respect to the enforcement of its rights hereunder. (c) If, after the date of this Agreement, (i) Parent terminates this Agreement in accordance with Section 10.1(g); or (ii) the Company terminates this Agreement in accordance with Section 10.1(h), or (iii) the failure Company terminates this Agreement in accordance with Section 10.1(i) after the occurrence of an Acquisition Proposal and makes an Adverse Recommendation Change, then immediately upon the occurrence of the transactions contemplated by events specified in Section 10.2(c)(i), Section 10.2(c)(ii) or Section 10.2(c)(iii), and in addition to any other rights and remedies of Parent, the Company shall pay Parent a cash amount of $849,000 as an agreed-upon termination fee (the “Termination Fee”). (d) In addition, if, after, the date of this Agreement, (x) the Company terminates this Agreement in accordance with Section 10.1(i) after the occurrence of an Acquisition Proposal and does not make an Adverse Recommendation Change, or (y) (1) prior to be consummated.the termination of this Agreement, a bona fide Acquisition Proposal shall have been made known to senior management or the Board of Directors of the Company or shall have been made directly to its shareholders generally or any Person shall have publicly announced an Acquisition Proposal or the intention to make an Acquisition Proposal (whether or not conditional) with respect to the Company, and (2) thereafter this Agreement is terminated by (A) either Parent or the Company pursuant to Section 10.1(b) and the shareholder approval of the Agreement required under the BCA has not been obtained; or (z) after the occurrence of an Acquisition Proposal, Parent terminates this Agreement pursuant to Section 10.1(c) solely in the case of a willful breach of this Agreement, and in the case of (x), (y) or (z) (each, a Trigger Event”), an Acquisition Transaction, as defined below, involving the Company is consummated or a definitive agreement is entered into by the Company relating to an Acquisition Transaction, in either case within 18 months following a Trigger Event (a “Subsequent Trigger Event”), then, upon such Subsequent Trigger Event, in addition to any other rights and remedies of Parent, the Company shall pay Parent the Termination Fee. For purposes of this Section 10.2(d),

Effect of Termination; Termination Fee. (a) In the event of the termination and abandonment of this Agreement pursuant to Section 10.1, this Agreement shall terminate and have no effect, except as otherwise provided herein and except that the provisions of this Section 10.2, Section 10.5 and Article 11 of this Agreement shall survive any such termination and abandonment. (b) If, after the date of this Agreement, Buyer terminates this Agreement in accordance with Section 10.1(g) or Seller terminates this Agreement pursuant to Section 10.1(h), Seller shall be obligated to pay Buyer a fee of $650,000 as an agreed-upon termination fee in immediately available funds within one (1) business day of such termination (the “Termination Fee”). In addition, if, after a proposal for an Acquisition Transaction has been publicly announced by any person or entity, Buyer terminates this Agreement pursuant to Section 10.1(e)(ii), Seller shall be obligated to pay Buyer a fee of $275,000 in immediately available funds within one business day of such notice of termination as reimbursement for its time and expenses associated with negotiating this Agreement, and if an Acquisition Transaction is consummated or a definitive agreement is entered into by Seller relating to an Acquisition Transaction, in either case, within fifteen (15) months of the termination of this Agreement pursuant to Section 10.01, this Agreement shall forthwith become null and void and have no effect, without any Liability on the part of any Party hereto; provided, however, that the last sentence of Section 5.03(b) and the provisions of Section 5.14, Section 5.16(c10.1(e)(ii), this Section 10.02 and Article XI hereof Seller shall survive any termination of this Agreement. The Confidentiality Agreement shall not be affected by a termination of this Agreement. (b) In the event that this Agreement is terminated (i) by Parent pursuant to Section 10.01(e) or Section 10.01(f) or (ii) by Parent or Buyer pursuant to Section 10.01(c) at a time when this Agreement was terminable by Parent pursuant to Section 10.01(e) (determined without regard to any applicable cure period otherwise available thereunder) or Section 10.01(f), then, in either case, Holdings shall, or shall cause Buyer to, promptly, but in no event later than five (5) Business Days after the date of such termination, pay or cause to be paid to Parent or its designees an amount equal to $26,250,000.00 (the “Termination Fee”) by wire transfer of immediately available funds. If Holdings or Buyer fails obligated to pay the Termination Fee when due, and, in order to obtain such payment, Parent commences an Action that results in a judgment against Holdings or Buyer for the Termination Fee, Holdings shall, or shall cause Buyer to, pay to Parent, together with less any amounts previously paid at the Termination Fee, (A) interest on the Termination Fee from the date of termination of time this Agreement at a rate per annum equal to the Prime Rate was terminated. (c) Seller and (B) Parent’s costs and expenses (including reasonable attorneys’ fees) in connection with such Action. Without limiting Parent’s right to obtain an award of specific performance permitted by Section 11.09, solely for purposes of establishing the basis for the amount thereof, and without in any way increasing the amount of the Termination Fee or expanding the circumstances in which the Termination Fee is to be paid, it is agreed Buyer agree that the Termination Fee is fair and reasonable in the circumstances. If a liquidated damagecourt of competent jurisdiction shall nonetheless, and not by a penalty. For final, nonappealable judgment, determine that the avoidance amount of doubt, in no event shall Holdings or Buyer be required to pay the any such Termination Fee on more than one occasion. Notwithstanding anything to exceeds the contrarymaximum amount permitted by law, in then the event that the Closing does not occur solely as a result amount of Parent’s breach of the Parent Backstop and this Agreement is terminated in such a way as would give rise to payment of a Termination Fee, no such Termination Fee shall be due or owingreduced to the maximum amount permitted by law in the circumstances, as determined by such court of competent jurisdiction. (cd) In the event that this Agreement is terminated pursuant to Except as otherwise provided in Section 10.01(e) or Section 10.01(f)10.5, or pursuant to Section 10.01(c) at a time when this Agreement was terminable by Parent pursuant to Section 10.01(e) or Section 10.01(f), Parent’s receipt of the Termination Fee from Holdings or Buyer pursuant to Section 10.02(b) and the payment of any other amounts due pursuant to the last sentence of Section 5.03(b), Section 5.16(c) and Section 10.02(b) shall be the Buyer and Buyer Bank’s sole and exclusive remedy of Parent and the Sellers relief against Holdings Seller and Buyer and 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, assignees of each of Holdings and Buyer, and 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, assignees of any of the foregoing (the Persons described in this Section 10.02(c)(i), collectively, the “Buyer Group”) for any Damages suffered as a result of any breach of any representation, warranty, covenant or agreement set forth herein, or the failure of the transactions contemplated by this Agreement to be consummatedSeller Bank.

Effect of Termination; Termination Fee. (a) In the event of the termination and abandonment of this Agreement pursuant to Section 10.0110.1, this the Agreement shall forthwith become null and void terminate and have no effect, without any Liability on the part of any Party hereto; provided, however, except as otherwise provided herein and except that the last sentence of Section 5.03(b) and the provisions of this Section 5.1410.2, Section 5.16(c), this Section 10.02 10.5 and Article XI hereof 11 shall survive any such termination of this Agreement. The Confidentiality Agreement shall not be affected by a termination of this Agreementand abandonment. (b) In the event that this Agreement is terminated (i) by Parent pursuant to Section 10.01(e) or Section 10.01(f) or (ii) by Parent or Buyer pursuant to Section 10.01(c) at a time when this Agreement was terminable by Parent pursuant to Section 10.01(e) (determined without regard to any applicable cure period otherwise available thereunder) or Section 10.01(f)If, then, in either case, Holdings shall, or shall cause Buyer to, promptly, but in no event later than five (5) Business Days after the date of such terminationthis Agreement, pay (i) an Acquisition Transaction (as defined below) is offered, presented or cause proposed to be paid to Parent Monticello or its designees shareholders, (ii) thereafter this Agreement and the Merger are disapproved by Monticello or by the shareholders of Monticello and (iii) within two (2) years after termination of this Agreement as a result of disapproval by Monticello or by the shareholders of Monticello, an Acquisition Transaction is consummated or a definitive agreement is entered into by Monticello relating to an Acquisition Transaction (a “Trigger Event”), then immediately upon the occurrence of a Trigger Event and in lieu of any other rights and remedies of CapitalSouth, Monticello shall pay CapitalSouth a cash amount equal to of $26,250,000.00 1,500,000 plus all reasonable costs and expenses incurred by CapitalSouth in connection with this Agreement, including fees and expenses of counsel and accountants, as an agreed-upon termination fee (the “Termination Fee”) by wire transfer ). For purposes of immediately available funds. If Holdings or Buyer fails to pay the Termination Fee when duethis Section 10.2, and, in order to obtain such payment, Parent commences an Action that results in a judgment against Holdings or Buyer for the Termination Fee, Holdings “Acquisition Transaction” shall, with respect to Monticello, mean any of the following: (a) a merger or shall cause Buyer toconsolidation, pay to Parent, together or any similar transaction (other than the Merger) of any company with the Termination Feeeither Monticello or Monticello Bank, (Ab) interest on a purchase, lease or other acquisition of all or substantially all the Termination Fee from assets of either Monticello or Monticello Bank, (c) a purchase or other acquisition of “beneficial ownership” by any “person” or “group” (as such terms are defined in Section 13(d)(3) of the date of termination of this Agreement at a rate per annum equal to the Prime Rate and (BExchange Act) Parent’s costs and expenses (including reasonable attorneys’ feesby way of merger, consolidation, share exchange, or otherwise) in connection with which would cause such Action. Without limiting Parent’s right person or group to obtain an award become the beneficial owner of specific performance permitted by Section 11.09, solely for purposes of establishing the basis for the amount thereof, and without in any way increasing the amount securities representing 35% or more of the Termination Fee voting power of Monticello, Monticello Bank or expanding any significant subsidiary of Monticello, or (d) a tender or exchange offer to acquire securities representing 35% or more of the circumstances in which the Termination Fee is to be paidvoting power of either Monticello, it is agreed Monticello Bank or any significant subsidiary of Monticello. (c) Monticello and CapitalSouth agree that the Termination Fee is fair and reasonable in the circumstances. If a liquidated damagecourt of competent jurisdiction shall nonetheless, and not by a penalty. For final, nonappealable judgment, determine that the avoidance amount of doubt, in no event shall Holdings or Buyer be required to pay the any such Termination Fee on more than one occasion. Notwithstanding anything to exceeds the contrarymaximum amount permitted by law, in then the event that the Closing does not occur solely as a result amount of Parent’s breach of the Parent Backstop and this Agreement is terminated in such a way as would give rise to payment of a Termination Fee, no such Termination Fee shall be due or owing. (c) In the event that this Agreement is terminated pursuant to Section 10.01(e) or Section 10.01(f), or pursuant to Section 10.01(c) at a time when this Agreement was terminable by Parent pursuant to Section 10.01(e) or Section 10.01(f), Parent’s receipt of the Termination Fee from Holdings or Buyer pursuant to Section 10.02(b) and the payment of any other amounts due pursuant reduced to the last sentence maximum amount permitted by law in the circumstances, as determined by such court of Section 5.03(b), Section 5.16(c) and Section 10.02(b) shall be the sole and exclusive remedy of Parent and the Sellers against Holdings and Buyer and 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, assignees of each of Holdings and Buyer, and 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, assignees of any of the foregoing (the Persons described in this Section 10.02(c)(i), collectively, the “Buyer Group”) for any Damages suffered as a result of any breach of any representation, warranty, covenant or agreement set forth herein, or the failure of the transactions contemplated by this Agreement to be consummatedcompetent jurisdiction.

Effect of Termination; Termination Fee. (a) In the event of the termination and abandonment of this Agreement pursuant to Section 10.1, the Agreement shall terminate and have no effect, except as otherwise provided herein and except that the provisions of this Section 10.2, Section 10.5 and Article 11 of this Agreement shall survive any such termination and abandonment. (b) In the event of termination of this Agreement pursuant to Section 10.0110.1, except as provided in Section 10.2(c), whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall forthwith become null and void and have no effect, without any Liability on be paid by the part party incurring such expenses. In the event of any Party hereto; provided, however, that the last sentence of Section 5.03(b) and the provisions of Section 5.14, Section 5.16(c), this Section 10.02 and Article XI hereof shall survive any termination of this Agreement. The Confidentiality Agreement shall not be affected by a termination of this Agreement. (b) In the event that this Agreement is terminated (i) by Parent pursuant to Section 10.01(e) or Section 10.01(f) or (ii) by Parent or Buyer pursuant to Section 10.01(c) at a time when this Agreement was terminable by Parent pursuant to Section 10.01(e) (determined without regard to any applicable cure period otherwise available thereunder) or Section 10.01(f), then, in either case, Holdings shall, or shall cause Buyer to, promptly, but in no event later than five (5) Business Days after the date of such termination, pay or cause to be paid to Parent or its designees an amount equal to $26,250,000.00 (the “Termination Fee”) by wire transfer of immediately available funds. If Holdings or Buyer fails to pay the Termination Fee when due, and, in order to obtain such payment, Parent commences an Action that results in a judgment against Holdings or Buyer for the Termination Fee, Holdings shall, or shall cause Buyer to, pay to Parent, together with the Termination Fee, (A) interest on the Termination Fee from the date of termination of this Agreement at a rate per annum equal to the Prime Rate and (B) Parent’s costs and expenses (including reasonable attorneys’ fees) in connection with such Action. Without limiting Parent’s right to obtain an award of specific performance permitted by Section 11.09, solely for purposes of establishing the basis for the amount thereof, and without in any way increasing the amount of the Termination Fee or expanding the circumstances in which the Termination Fee is to be paid, it is agreed that the Termination Fee is a liquidated damage, and not a penalty. For the avoidance of doubt, in no event shall Holdings or Buyer be required to pay the Termination Fee on more than one occasion. Notwithstanding anything to the contrary, in the event that the Closing does not occur solely as a result of Parent’s breach of the Parent Backstop and this Agreement is terminated in such a way as would give rise to payment because of a Termination Fee, no such Termination Fee shall be due or owing. (c) In the event that this Agreement is terminated pursuant to Section 10.01(e) or Section 10.01(f), or pursuant to Section 10.01(c) at a time when this Agreement was terminable by Parent pursuant to Section 10.01(e) or Section 10.01(f), Parent’s receipt of the Termination Fee from Holdings or Buyer pursuant to Section 10.02(b) and the payment of any other amounts due pursuant to the last sentence of Section 5.03(b), Section 5.16(c) and Section 10.02(b) shall be the sole and exclusive remedy of Parent and the Sellers against Holdings and Buyer and 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, assignees of each of Holdings and Buyer, and 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, assignees of any of the foregoing (the Persons described in this Section 10.02(c)(i), collectively, the “Buyer Group”) for any Damages suffered as a result of any willful breach of any representation, warranty, covenant or agreement set forth hereincontained in this Agreement, the breaching party shall remain liable for any and all damages, costs and expenses, including all reasonable attorneys’ fees, sustained or incurred by the non-breaching party as a result thereof or in connection therewith or with respect to the enforcement of its rights hereunder. (c) If, after the date of this Agreement, (i) Roma terminates this Agreement in accordance with Section 10.1(g) or (ii) Sterling terminates this Agreement in accordance with Section 10.1(i), then immediately upon the occurrence of the events specified in Section 10.2(c)(i) or Section 10.2(c)(ii) and in addition to any other rights and remedies of Roma, Sterling shall pay Roma a cash amount of $745,000 as an agreed-upon termination fee (the “Termination Fee”). If, after, the date of this Agreement, Sterling or Roma terminates this Agreement in accordance with Section 10.1(e)(2) (a “Trigger Event”) and an Acquisition Transaction, as defined below, involving Sterling is consummated or a definitive agreement is entered into by Sterling relating to an Acquisition Transaction, in either case within 18 months following a Trigger Event (a “Subsequent Trigger Event”), then, upon such Subsequent Trigger Event, in addition to any other rights and remedies of Roma, Sterling shall pay Roma the Termination Fee. If payment of the Termination Fee is made, then Roma will not have any other rights or claims against Sterling or its subsidiaries, or their respective officers and directors, under this Agreement, it being agreed that the failure acceptance of the transactions contemplated by this Agreement to be consummated.Termination Fee under Section

Effect of Termination; Termination Fee. (a) In the event of the termination and abandonment of this Agreement pursuant to Section 10.1, the Agreement shall terminate and have no effect, except as otherwise provided herein and except that the provisions of Sections 5.3(b), 6.4, 10.2, 10.5, Article 11 and any other Section of this Agreement which, by its terms, relates to post-termination rights or obligations, shall survive any such termination and abandonment and remain in full force and effect. (b) If, after the date of this Agreement, Beneficial terminates this Agreement in accordance with Section 10.1(g) or SE Corp terminates this Agreement pursuant to Section 10.1(h), SE Corp shall be obligated to pay Beneficial a fee of $1.0 million as an agreed-upon termination fee in immediately available funds within one (1) business day of such notice of termination (the “Termination Fee”). In addition, if, after a proposal for an Acquisition Transaction has been publicly announced by any Person, Beneficial terminates this Agreement pursuant to Section 10.1(e)(iii), SE Corp shall be obligated to pay Beneficial a fee of $250,000 in immediately available funds within one business day of such notice of termination as reimbursement for its time and expenses associated with negotiating this Agreement, and if an Acquisition Transaction is consummated or a definitive agreement is entered into by SE Corp relating to an Acquisition Transaction, in either case, within 15 months of the termination of this Agreement pursuant to Section 10.01, this Agreement shall forthwith become null and void and have no effect, without any Liability on the part of any Party hereto; provided, however, that the last sentence of Section 5.03(b) and the provisions of Section 5.14, Section 5.16(c10.1(e)(iii), this Section 10.02 and Article XI hereof SE Corp shall survive any termination of this Agreement. The Confidentiality Agreement shall not be affected by a termination of this Agreement. (b) In the event that this Agreement is terminated (i) by Parent pursuant to Section 10.01(e) or Section 10.01(f) or (ii) by Parent or Buyer pursuant to Section 10.01(c) at a time when this Agreement was terminable by Parent pursuant to Section 10.01(e) (determined without regard to any applicable cure period otherwise available thereunder) or Section 10.01(f), then, in either case, Holdings shall, or shall cause Buyer to, promptly, but in no event later than five (5) Business Days after the date of such termination, pay or cause to be paid to Parent or its designees an amount equal to $26,250,000.00 (the “Termination Fee”) by wire transfer of immediately available funds. If Holdings or Buyer fails obligated to pay the Termination Fee when due, and, in order to obtain such payment, Parent commences an Action that results in a judgment against Holdings or Buyer for Beneficial the Termination Fee, Holdings shall, or shall cause Buyer to, pay to Parent, together with less any amounts previously paid at the Termination Fee, (A) interest on the Termination Fee from the date of termination of time this Agreement at a rate per annum equal to the Prime Rate was terminated. (c) SE Corp and (B) Parent’s costs and expenses (including reasonable attorneys’ fees) in connection with such Action. Without limiting Parent’s right to obtain an award of specific performance permitted by Section 11.09, solely for purposes of establishing the basis for the amount thereof, and without in any way increasing the amount of the Termination Fee or expanding the circumstances in which the Termination Fee is to be paid, it is agreed Beneficial agree that the Termination Fee is fair and reasonable in the circumstances. If a liquidated damagecourt of competent jurisdiction shall nonetheless, and not by a penalty. For final, nonappealable judgment, determine that the avoidance amount of doubt, in no event shall Holdings or Buyer be required to pay the any such Termination Fee on more than one occasion. Notwithstanding anything to exceeds the contrarymaximum amount permitted by law, in then the event that the Closing does not occur solely as a result amount of Parent’s breach of the Parent Backstop and this Agreement is terminated in such a way as would give rise to payment of a Termination Fee, no such Termination Fee shall be due or owingreduced to the maximum amount permitted by law in the circumstances, as determined by such court of competent jurisdiction. (cd) In the event that of the termination of this Agreement is terminated pursuant prior to Section 10.01(e) or Section 10.01(f)the Effective Time of the Merger, or pursuant each party, and its respective officers, directors and employees, agrees that it shall not make any statements that disparage the other parties to Section 10.01(c) at a time when this Agreement was terminable by Parent pursuant to Section 10.01(e) or Section 10.01(f), Parent’s receipt the business practices or prospects of such other parties. Each party shall refrain from making any statements regarding the Termination Fee from Holdings transaction or Buyer pursuant to Section 10.02(b) and the payment of any its termination other amounts due pursuant to the last sentence of Section 5.03(b), Section 5.16(c) and Section 10.02(b) shall be the sole and exclusive remedy of Parent and the Sellers against Holdings and Buyer and 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, assignees of each of Holdings and Buyer, than such statements contained in a joint press release and 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, assignees of any of the foregoing (the Persons described in this Section 10.02(c)(i), collectively, the “Buyer Group”) for any Damages suffered as a result of any breach of any representation, warranty, covenant or agreement set forth herein, or the failure of the transactions contemplated by this Agreement to be consummatedapplicable required regulatory filings.