Seller Default. Notwithstanding any provision in this Agreement to the contrary, if Closing does not occur by reason of a material default by any Seller which continues for two (2) business days after written notice from Buyer, then Buyer may, as Buyer’s sole and exclusive remedy, elect to either: # terminate this Agreement, in which event Buyer shall receive the Earnest Deposit, Sellers shall pay Buyer all of Buyer’s actual out-of-pocket costs incurred in connection with this Agreement, including reasonable attorneys’ fees, not to exceed One Million Dollars ($1,000,000.00) (the “Damages Cap”) within thirty (30) days of Sellers’ receipt of written demand therefor with reasonable supporting evidence, and none of the parties hereto shall have any further rights or obligations hereunder except for obligations that specifically survive the termination; or # enforce specific performance of this Agreement, provided that such action must be commenced within sixty (60) days following Buyer’s discovery of any Seller’s material default under this Agreement. No other remedy or relief shall be available to Buyer, and Buyer hereby waives any and all other remedies, including the right to sue Sellers for damages.

Seller Disclaimer. Except as specifically set forth in this Agreement, Seller specifically disclaims any representation, warranty or guaranty with respect to the Properties, express or implied, including, but not limited to, any representation or warranty as to the Properties’ condition, fitness for a particular purpose, quality, freedom from defects or contamination (whether or not detectable by inspection), compliance with zoning or other legal requirements or as to the availability or existence of any utility or other governmental or private services or as to the amount of taxes assessed to the Properties.

By Seller. Subject to and except as otherwise disclosed on [Schedule 9.1] attached hereto (as to the respective representations and warranties set forth below that are noted thereon), Seller represents, warrants and covenants to Buyer as of the Effective Date (collectively, the “Seller Representations”) that:

Seller Default. Notwithstanding any provision in this Agreement to the contrary, if the Closing does not occur by reason of a material default by Seller which continues until the expiration of two (2) days after written notice from Buyer, then Buyer shall have the right, as its sole and exclusive remedy, to # terminate this Agreement, in which event Buyer shall receive the Earnest Deposit (without the requirement or need to receive written instructions from Seller) and a reimbursement from Seller for all of Buyer’s out-of-pocket expenses incurred by Buyer in connection with this Agreement through the date of such termination, provided, however, that such expenses shall not exceed $1,500,000 (the “Pursuit Costs”) and neither of the parties hereto shall have any further rights or obligations hereunder except for obligations that specifically survive the termination, # waive such default and proceed to the Closing without a reduction in the Purchase Price, or # provided Buyer is not otherwise in material default under this Agreement, bring an action for specific performance of Seller’s obligations hereunder, in which case Seller shall be liable to Buyer for all of Buyer’s costs and expenses relating to such specific performance action (not to exceed the Pursuit Costs), within ninety (90) days following the scheduled Closing Date. Anything in this Section 10.1 to the contrary notwithstanding, if Seller intentionally breaches this agreement and conveys any of the Properties or Membership Interests in violation of this Agreement, then Buyer shall be entitled to all remedies available in law and equity (including consequential damages) and shall not be limited in any way to its Pursuit Costs.

Seller Representations. [Section 16] of the First Addendum is hereby amended by adding the following as subsection # to such Section:

Recording fees for documents needed to cure title

Seller Plans. The Seller Plans listed on [Schedule 2.1.1(m)] (the “Assumed Seller Plans”);

By virtue of the execution of this Agreement by each Seller, and without further action of any Seller, the Sellers will be deemed to have irrevocably constituted and appointed Chase Terwilliger as “Seller Representative” (and by execution of this Agreement Chase Terwilliger hereby accepts such appointment) as agent and attorney-in-fact for and on behalf of Sellers, with full power of substitution, to act in the name, place and stead of each Seller with respect to this Agreement and the taking by Seller Representative of any and all actions and the making of any decisions required or permitted to be taken by any Seller under this Agreement, in each case either # on and prior to the Closing, and # immediately following the Closing. Such powers shall include the exercise of the power to: # give and receive notices and communications under this Agreement; # receive and pay funds under this Agreement, # prepare and deliver documents, certificates and instruments, and give instructions, under this Agreement, # authorize or object to claims for indemnification made by any Buyer Indemnitee under this Agreement; # agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by any Buyer Indemnitee under this Agreement; # agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters specifically delegated to Seller Representative in this Agreement; and # take all actions necessary or appropriate in the good faith judgment of the Seller Representative for the accomplishment of the foregoing; provided, that the Seller Representative shall have no authority to take any action on or prior to the Closing which would bind any Company following the Closing except as provided in this Agreement or otherwise consented to in writing by the Buyer. The power of attorney hereby is coupled with an interest and is irrevocable; provided, that the power of attorney granted by this Section shall, without any further action by any Person, be deemed automatically revoked and of no further effect with respect to any Company immediately following the Closing. The identity of the Seller Representative and the terms of the agency may be changed, and a successor Seller Representative may be appointed, from time to time (including in the event of the death, disability or other incapacity of the Seller Representative) by the consent of Sellers accounting for at least fifty percent of the Pro Rata Shares, and any such successor will succeed the Seller Representative as Seller Representative under this Agreement. Amounts paid by or on behalf of Buyer to the Seller Representative on behalf of the Sellers shall be treated as received by the Sellers.

Seller Representations. In connection with the transactions contemplated hereby, the Sellers represents and warrants that:

Seller Representative. Each Seller hereby irrevocably appoints Jim Kramp as the Seller Representative its sole and exclusive agent, representative and attorney-in-fact for each such Seller, for and on behalf of each such Seller, with full power and authority to represent each Seller and such Seller’s successors and assigns with respect to all matters arising under this Agreement and the Earn-Out Agreement and all actions taken by the Sellers Representative under this Agreement and the Earn-Out Agreement will be binding upon each such Seller and such Seller’s successors and assigns as if expressly ratified and confirmed in writing by each of them. Without limiting the generality of the foregoing, the Sellers Representative has full power and authority, on behalf of each Seller and such Seller’s successors and assigns, to # interpret the terms and provisions of this Agreement and the Earn-Out Agreement, # dispute or fail to dispute any Liability Claim under this Agreement, # negotiate and compromise any dispute that may arise under this Agreement, # sign any releases or other documents with respect to any such dispute, # receiving services of process upon the Sellers, # executing and delivering to the Buyer or any other Person on behalf of any of or all of the Sellers any and all instruments, certificates, documents and agreements called for by this Agreement and the transactions contemplated hereby and thereby, # receiving or providing notices on behalf of the Sellers with respect to any matter, Indemnity Claim or legal proceeding arising out of or relating to this Agreement, # taking all actions necessary or appropriate in the judgment of the Sellers Representative on behalf of the Sellers in connection with this Agreement and the Earn-Out Agreement, # negotiating and agreeing upon any adjustments to the Purchase Price in accordance with Section ‎2.3 hereof and # in connection with any of the foregoing actions, engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge the Sellers’ Representative’s duties and obligations hereunder. The Sellers Representative shall be entitled to exercise these faculties even if by doing so it incurs in self-contacting, multirepresentation or conflict of interest. A Seller will be deemed a party or a signatory to any agreement, document, instrument or certificate for which the Sellers Representative signs on behalf of such Seller. All decisions, actions and instructions by the Sellers Representative, including the defense or settlement of any Liability Claims for which Sellers (or any of them) may be required to indemnify the Buyer pursuant to Article 11, will be conclusive and binding on each Seller and no Seller has the right to object, dissent, protest or otherwise contest the same. The Sellers shall hold harmless the Buyer from and against any Losses that they may suffer or sustain as the result of any claim by any Person that an action taken by the Sellers Representative on behalf of the Sellers is not binding on, or enforceable against, the Sellers. The Buyer has the right to rely conclusively on the instructions and decisions of the Sellers Representative as to the settlement of any claims for indemnification by the Buyer pursuant to Article 11, or any other actions required to be taken by the Sellers Representative hereunder, and no Party will have any cause of action against the Buyer for any action taken by the Buyer in reliance upon the instructions or decisions of the Sellers Representative. The appointment of the Sellers Representative is an agency coupled with an interest and is irrevocable and any action taken by the Sellers Representative pursuant to the authority granted in this Section ‎12.1 is effective and absolutely binding on each Seller notwithstanding any contrary action of or direction from such Seller. The death or incapacity, or dissolution or other termination of existence, of any Seller does not terminate the authority and agency of the Sellers Representative (or successor thereto). The provisions of this Section ‎12.1 are binding upon the executors, heirs, legal representatives and successors of each Seller, and any references in this Agreement to a Seller or the Sellers means and includes the successors to the Sellers’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise. The Sellers Representative shall not be liable to any Seller for any act of the Sellers Representative taken in good faith and in the exercise of its reasonable judgment and arising out of or in connection with the acceptance or administration of its duties under this Agreement, except to the extent any Losses actually incurred by such Sellers Representative as a proximate result of the gross negligence or bad faith of the Sellers Representative. The Sellers Representative shall not be liable for, and may seek indemnification from the Sellers for, any Losses incurred by the Sellers Representative while acting in good faith and in exercise of its reasonable judgment and arising out of or in connection with the acceptance or administration of its duties under this Agreement, except to the extent that such Losses is the proximate result of gross negligence or bad faith of the Sellers Representative. The Sellers Representative shall be entitled to recover from the Sellers any out-of-pocket costs and expenses reasonably incurred by the Sellers Representative in connection with the actions taken by the Sellers Representative with respect to all Purchase Price, including any adjustments thereto (including the hiring of legal counsel and the incurring of legal fees and costs). If Jim Kramp declines to serve, resigns or becomes legally incapacitated, then a successor Sellers’ Representative may be appointed by a majority in interest of the Sellers which shall be determined based on the number of Shares held by the Sellers immediately prior to the Closing. If the Sellers fail to appoint a Seller Representative, the Buyer may make a petition pursuant to provisions of Section ‎12.14 to appoint a Seller Representative. The provisions of this Section ‎12.1 shall survive the resignation and replacement of the Sellers Representative.