Common use of Buyer’s Breach Clause in Contracts

Buyer’s Breach. If Closing does not occur because Buyer wrongfully fails to tender performance at Closing or otherwise knowingly and willfully breaches this Agreement and each Seller is ready to close, then Sellers shall have the right to terminate this Agreement in accordance with Section 11.1(d) and receive the Deposit as liquidated damages, free of any claims by Buyer or any other Person with respect thereto. The right to receive the Deposit shall be Sellers’ sole and exclusive remedy and in full and complete satisfaction of any losses that may be suffered by Sellers as a result of such termination and Sellers shall be deemed to have waived any and all other rights and remedies available to Sellers in respect of such termination (including liability for breach of this Agreement before such termination). IT IS EXPRESSLY STIPULATED BY THE PARTIES THAT THE ACTUAL AMOUNT OF DAMAGES RESULTING FROM SUCH TERMINATION WOULD BE DIFFICULT IF NOT IMPOSSIBLE TO DETERMINE ACCURATELY BECAUSE OF THE UNIQUE NATURE OF THIS AGREEMENT, THE UNIQUE NATURE OF THE OIL AND GAS INTERESTS, THE UNCERTAINTIES OF APPLICABLE COMMODITY MARKETS AND DIFFERENCES OF OPINION WITH RESPECT TO SUCH MATTERS, AND THAT THE LIQUIDATED DAMAGES PROVIDED FOR HEREIN ARE A REASONABLE ESTIMATE BY THE PARTIES OF SUCH DAMAGES UNDER THE CIRCUMSTANCES AND DO NOT CONSTITUTE A PENALTY. Upon termination of this Agreement under the circumstances described in this Section 11.3(a), the Parties shall provide joint written instructions to the Escrow Agent to distribute the Deposit to Sellers and earnings thereon to Buyer.

Buyer’s Breach. (a) If any Seller, acting in good faith, reasonably believe that Buyer or any of its Affiliates has breached its obligations under Section 9.1.1 or 9.1.2 (the Buyer’s Breach), the Sellers’ Representative shall notify Buyer in writing thereof (the Notice of Breach). The Notice of Breach must indicate (on the basis of the information reasonably available to the Sellers’ Representative at the time he gives such Notice of Breach) the nature of the Buyer’s Breach and Seller’s view on how the Buyer’s Breach is likely to reduce the Subsequent Closing does not occur because Buyer wrongfully fails Purchase Price. (b) The Sellers’ Representative and the Buyer’s Representative shall in good faith discuss the Buyer’s Breach and its impact on the Subsequent Closing Purchase Price, and endeavor in good faith to tender performance at agree an adjustment to the basis on which the Subsequent Closing Purchase Price is calculated or otherwise knowingly and willfully breaches such other variation to this Agreement to put Sellers in the position they would have been in had such Buyer’s Breach not occurred. This Section is without prejudice to any other claim or remedy Sellers may have against Buyer in relation to the Buyer’s Breach or Buyer’s obligation to pay the Subsequent Closing Purchase Price, in each case, save to the extent that the Sellers’ Representative and each Seller is ready the Buyer’s Representative agree on a resolution in relation to closethe Buyer’s Breach in writing and which waives such claim or remedy or amends Buyer’s obligations under Section 9.1.1 or 9.1.2. (c) If the Sellers’ Representative and the Buyer’s Representative fail to agree on the Buyer’s Breach in accordance with 9.1.3(b) within (60) Business Days from the receipt of the Notice of Breach by Buyer, then Sellers the dispute shall have the right to terminate this Agreement be resolved in accordance with Section 11.1(d10.12 (Arbitration), in which arbitration it will be determined (i) and receive the Deposit as liquidated damages, free of any claims by if Buyer or its Affiliate has breached any other Person with respect thereto. The right to receive of the Deposit obligations under Section 9.1.1 or 9.1.2, and (ii) if such breach is established, the amount by which Buyer shall be Sellers’ sole and exclusive remedy and compensate Sellers for any reduction in full and complete satisfaction of any losses that may be suffered by Sellers the Subsequent Closing Purchase Price as a result of such termination and Sellers shall be deemed to have waived any and all other rights and remedies available to Sellers in respect a breach by Buyer of such termination (including liability for breach of this Agreement before such termination). IT IS EXPRESSLY STIPULATED BY THE PARTIES THAT THE ACTUAL AMOUNT OF DAMAGES RESULTING FROM SUCH TERMINATION WOULD BE DIFFICULT IF NOT IMPOSSIBLE TO DETERMINE ACCURATELY BECAUSE OF THE UNIQUE NATURE OF THIS AGREEMENT, THE UNIQUE NATURE OF THE OIL AND GAS INTERESTS, THE UNCERTAINTIES OF APPLICABLE COMMODITY MARKETS AND DIFFERENCES OF OPINION WITH RESPECT TO SUCH MATTERS, AND THAT THE LIQUIDATED DAMAGES PROVIDED FOR HEREIN ARE A REASONABLE ESTIMATE BY THE PARTIES OF SUCH DAMAGES UNDER THE CIRCUMSTANCES AND DO NOT CONSTITUTE A PENALTY. Upon termination of this Agreement under the circumstances described in this Section 11.3(a), the Parties shall provide joint written instructions to the Escrow Agent to distribute the Deposit to Sellers and earnings thereon to Buyer9.1.1 or 9.1.2.

Buyer’s Breach. If Closing does not occur because In the event that Buyer wrongfully fails to tender performance timely pay to Seller any installment payment of the Purchase Price as set forth in paragraph 3 above, or fails to perform any agreement, covenant, representation or warranty under this Coal Agreement which failure (other than the failure to make timely payments where no notice is required) is not cured within thirty (30) days after written notice thereof by Seller to Buyer, Seller may at Closing Seller’s option (i) deem this Coal Agreement terminated, null, void and of no further force and effect at which time Buyer shall have no further rights or otherwise knowingly liabilities under this Coal Agreement and willfully all payments made by Buyer shall be deemed forfeited and non-refundable, or (ii) initiate action for any other remedy at law or in equity permitted under Montana law including, without limitations, an action for specific performance. In the event the Buyer defaults under or breaches this Agreement Coal Agreement, it will deliver to Seller all of the drill hole records, maps, reports, core hole tests, feasibility studies, reserve studies and each Seller is ready to closeevaluations, then Sellers shall have the right to terminate this Agreement in accordance with Section 11.1(d) mining plans, permits, applications, and receive the Deposit as liquidated damages, free of any claims all other information and data gathered or developed by Buyer or any other Person on its behalf with respect theretoto the coal and other minerals. The right Any permits, licenses or other authorizations obtained will be assigned or transferred from Buyer to receive Seller if permitted by law. If Buyer completes the Deposit shall be Sellers’ sole drilling and exclusive remedy produces the studies and mining plan as provided in full paragraph 2 above, and complete satisfaction makes timely all payments provided for in subparagraphs 3.a., 3.b. and 3.c. i through 3.c. iii above but defaults on the payment of any losses that may be suffered by Sellers the $1,250,000 as a result of such termination provided in subparagraph 3.c. vi. above, and Sellers shall be deemed if Buyer transfers and delivers to have waived any Seller all the permits, reports, data, records, maps, core hole tests, studies, plans and all other rights and remedies available to Sellers in respect of such termination (including liability for breach of this Agreement before such termination). IT IS EXPRESSLY STIPULATED BY THE PARTIES THAT THE ACTUAL AMOUNT OF DAMAGES RESULTING FROM SUCH TERMINATION WOULD BE DIFFICULT IF NOT IMPOSSIBLE TO DETERMINE ACCURATELY BECAUSE OF THE UNIQUE NATURE OF THIS AGREEMENT, THE UNIQUE NATURE OF THE OIL AND GAS INTERESTS, THE UNCERTAINTIES OF APPLICABLE COMMODITY MARKETS AND DIFFERENCES OF OPINION WITH RESPECT TO SUCH MATTERS, AND THAT THE LIQUIDATED DAMAGES PROVIDED FOR HEREIN ARE A REASONABLE ESTIMATE BY THE PARTIES OF SUCH DAMAGES UNDER THE CIRCUMSTANCES AND DO NOT CONSTITUTE A PENALTY. Upon termination of this Agreement under the circumstances described information as set forth above in this Section 11.3(a)subparagraph 10.a., the Parties shall provide joint written instructions upon regaining title to the Escrow Agent to distribute coal property Seller will give Buyer a Forty percent (40%) equity interest in Seller, except that Buyer shall have no interest in the Deposit to Sellers and earnings thereon to Buyerroyalties on the coal until Seller has received the first 25 cents per ton royalty.

Buyer’s Breach. If Closing does not occur because (i) Buyer wrongfully fails to tender performance at Closing when (A) all of the conditions in Sections 7.2(a)-(h) and (j) that, by their terms, can be satisfied prior to Closing have been satisfied (or otherwise knowingly waived by Buyer) (unless the failure to satisfy such condition arises from the action or inaction by Buyer) and willfully breaches (B) Sellers are ready, willing and able to consummate the transactions hereunder, or (ii) Buyer terminates this Agreement and each Seller is ready pursuant to closeSection 11.1(f), then Sellers shall have the right to may, as their sole and exclusive remedy, terminate this Agreement in accordance with pursuant to Section 11.1(d11.1 (to the extent not already terminated) and receive retain the Deposit as liquidated damages, free of any claims by Buyer or any other Person with respect thereto. The right to receive retain the Deposit as described in the preceding sentence shall be Sellers’ sole and exclusive remedy and in full and complete satisfaction of any losses that may be suffered by Sellers as a result of such termination and Sellers shall be deemed to have waived any and all other rights and remedies available to Sellers in respect of such termination (including liability for breach of this Agreement before such termination). IT IS EXPRESSLY STIPULATED BY THE PARTIES THAT THE ACTUAL AMOUNT OF DAMAGES RESULTING FROM SUCH TERMINATION WOULD BE DIFFICULT IF NOT IMPOSSIBLE TO DETERMINE ACCURATELY BECAUSE OF THE UNIQUE NATURE OF THIS AGREEMENT, THE UNIQUE NATURE OF THE OIL AND GAS INTERESTS, THE UNCERTAINTIES OF APPLICABLE COMMODITY MARKETS AND DIFFERENCES OF OPINION WITH RESPECT TO SUCH MATTERS, AND THAT THE LIQUIDATED DAMAGES PROVIDED FOR HEREIN ARE A REASONABLE ESTIMATE BY THE PARTIES OF SUCH DAMAGES UNDER THE CIRCUMSTANCES AND DO NOT CONSTITUTE A PENALTY. Upon termination of this Agreement under the circumstances described in this Section 11.3(a), the Parties shall provide joint written instructions to the Escrow Agent to distribute the Deposit to Sellers and earnings thereon to Buyer.