[Remainder of Page Intentionally Left Blank]

agreements against the Debt Financing Sources and/or Preferred Equity Financing Sources and/or any Financing Source Related Parties, as applicable, party thereto, (e) agree, solely prior to the Effective Time, in no event will any Financing Source Related Party be liable to the Company or its Subsidiaries for consequential, special, exemplary, punitive or indirect damages (including any loss of profits, business, or anticipated savings), or damages of a tortious nature in connection with the Debt Financing or the Preferred Equity Financing, as applicable and (f) agree that the Financing Source Related Parties are express third party beneficiaries of the third sentence of Sections 9.04(d)(i) and 9.04(e) and this Section 9.15 of this Agreement, and the Debt Financing Sources and Preferred Equity Financing Sources may enforce such rights under such provisions and such provisions (and any definitions used in such provisions or any other provision of this Agreement to the extent an amendment, supplement, waiver or other modification of such provisions would materially modify and abrogate the substance of this Section) shall not be amended, supplemented, waived or otherwise modified in any way materially adverse to any Financing Source Related Parties without the prior written consent of each related Debt Financing Source.

Section 9.17 Non-Recourse Parent Parties. In no event will the Company, whether prior to or after termination of this Agreement, seek or obtain, nor will it permit any of its Representatives to seek or obtain, nor will any Person be entitled to seek or obtain, any monetary recovery or monetary award against any Non-Recourse Parent Party (as defined in the Equity Commitment Letter, which excludes, for the avoidance of doubt, each Guarantor, Parent and Merger Sub) or file or assert any claim with respect to this Agreement, the Equity Commitment Letter or the Guaranties or the transactions contemplated hereby and thereby (including any breach by any Guarantor, Parent or Merger Sub), the termination of this Agreement, the failure to consummate the transactions contemplated hereby or any claims or actions under Applicable Law arising out of or relating to any such breach, termination or failure, other than from Parent or Merger Sub to the extent expressly provided for in this Agreement or any Guarantor solely to the extent expressly provided for in the Guaranties and the Equity Commitment Letter.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

A-84

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

Signature Page to Agreement and Plan of Merger

A-85

EXHIBIT A

Form of Certificate of Incorporation of Surviving Corporation

A-86