Pengrowth Damages. If, at any time after the execution and delivery of this Agreement and prior to the termination of this Agreement and provided there is no unresolved material breach or non performance by Pengrowth of any of its covenants, representations or warranties contained in this Agreement: (a) Cona breaches any of its covenants made in Section 3.1(f) of this Agreement in a material manner; or (b) either Cona or the WEF Parties fails to complete the Arrangement prior to the Outside Date notwithstanding that each of the conditions contained in Sections 5.1 and 5.2 have been satisfied, or waived by Cona; (each of the above hereinafter referred to as a “Pengrowth Damages Event”) provided no Cona Damages Event has occurred, Cona shall, in the event of the termination of this Agreement pursuant to Section 8.1, pay to Pengrowth the Pengrowth Termination Fee, as liquidated damages, in immediately available funds, to an account designated by Pengrowth (or failing which, by bank draft), within five Business Days after the occurrence of the first Pengrowth Damages Event, and after the occurrence of such Pengrowth Damages Event, but prior to payment of the Pengrowth Termination Fee, Cona shall be deemed to hold in trust for Pengrowth any amount owing to Pengrowth under this Section 6.2. Cona and the WEF Parties shall only be obligated to pay one Pengrowth Termination Fee pursuant to this Section 6.2.
Pengrowth Damages. If at any time after the execution of this Agreement but prior to the termination of this Agreement:
(a) the NAL Board: (A) fails to make any of the recommendations or determinations referred to in Section 2.5; (B) withdraws, modifies or changes any of the recommendations or determinations referred to in Section 2.5 in a manner adverse to Pengrowth; (C) fails to publicly reaffirm any of its recommendations or determinations referred to in Section 2.5 in accordance with Section 3.4(e) or within three (3) Business Days of any written request to do so by Pengrowth (or, in the event that the NAL Meeting to approve the Arrangement is scheduled to occur within such three (3) Business Day period, prior to the scheduled date of such meeting); (D) recommends that the NAL Shareholders deposit their shares under, vote in favour of, or otherwise accept an Acquisition Proposal; or (E) resolves to do any of the foregoing;
(b) a bona fide Acquisition Proposal is announced, proposed, offered or made to NAL or the NAL Shareholders prior to the date of the NAL Meeting and remains outstanding at the time of the NAL Meeting and the NAL Shareholders do not approve the Arrangement or the Arrangement is not submitted for their approval and such Acquisition Proposal, as originally proposed or amended (or any other Acquisition Proposal that is announced, proposed, offered or made to NAL or the NAL Shareholders prior to the expiry of the first Acquisition Proposal) is completed within twelve (12) months of the date such Acquisition Proposal is announced, proposed, offered or made;
(c) a bona fide Acquisition is announced, proposed, offered or made to NAL or the NAL Shareholders and the NAL Board fails to reaffirm and maintain its recommendation of the Arrangement within ten (10) days of such announcement, proposal or offer;
(d) NAL accepts, recommends, approves, agrees to, endorses or enters into, or proposes publicly to accept, recommend, approve, agree to, endorse or enter into an agreement to implement a Superior Proposal;
(e) NAL is in material non-compliance with any of its covenants or agreements in Section 3.4; or
(f) NAL breaches any of its representations, warranties or covenants (without regard to any qualifiers as to materiality contained in them) (other than a covenant in Section 3.4) made in this Agreement, which breach, individually or in the aggregate, causes or would reasonably be expected to cause a Material Adverse Change respecting NAL or materially impedes the c...
