Disposition of Deposit on Termination. (a) If Closing fails to occur because of (1) XXXXX’s failure to perform and fulfill any agreement or covenant to be performed and fulfilled by XXXXX under this Agreement, or (2) XXXXX’s breach of any representation or warranty set forth in Article 4, Sellers shall be entitled to retain the Deposit as liquidated damages. In that event, Xxxxxxx and XXXXX shall jointly instruct the Escrow Agent to disburse the Deposit to Sellers’ Representative and close the escrow. The parties acknowledge that the Damages Sellers will suffer as a result of the Closing failing to occur because of any breaches within (1) or (2) of the first sentence of this Section 11.03(a) will be difficult or impossible to accurately ascertain. Payment of the Deposit to Sellers in those circumstances is estimated to be fair and reasonable compensation and not a penalty. Sellers’ retention of the Deposit as liquidated damages shall constitute Sellers’ sole and exclusive remedy in the circumstances described in this Section 11.03(a).
Disposition of Deposit on Termination. If this Agreement is terminated by either PDR, DG Systems or both for any reason other than a termination by PDR pursuant to Section 10.1(c), then in such event Escrow Agent shall forthwith return the Deposit and all interest earned thereon to DG Systems. If this Agreement is terminated by PDR pursuant to Section 10.1(c), then in such event the Escrow Agent shall turn over the Deposit and all interest earned thereon to PDR as and for liquidated damages. The parties hereto agreeing that the actual damages in such event would be difficult if not impossible to measure.
