Common use of Termination Damages Clause in Contracts

Termination Damages. (a) If all conditions precedent to the obligations of Grantee set forth in Article 9 have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because of the negligent or willful failure of Grantee to perform any of its obligations hereunder in any material respect, or the material breach of any representation or warranty herein by Grantee, then in such event, Grantor shall have the option to terminate this Agreement, in which case Grantor may pursue all available legal and equitable remedies. (b) If all conditions precedent to the obligations of Grantor set forth in Article 8 have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because of the negligent or willful failure of Grantor to perform any of its obligations hereunder in any material respect, or the breach of any representation or warranty herein by Grantor, then in such event, Grantee shall have the option to terminate this Agreement, in which case as Grantee may pursue all available legal and equitable remedies, including, without limitation, specific performance. (c) Notwithstanding anything to the contrary in this Agreement, in no event shall any Party be entitled to receive any punitive, indirect or consequential damages unless same are a part of a third Person claim for which a Party is seeking indemnification hereunder, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF THE OTHER PARTY, BUT EXPRESSLY EXCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

Termination Damages. (a) If all conditions precedent to the obligations of Grantee Buyer set forth in Article 9 VIII have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because of the negligent or willful failure of Grantee Buyer to perform any of its material obligations hereunder in any material respect, or the material breach of any material representation or warranty herein by GranteeBuyer, then in such eventevent and as Seller's sole remedy, Grantor Seller shall have the option right to terminate this Agreement, in which case Grantor may pursue all Seller shall retain the Deposit as liquidated damages on account of Buyer's failure to perform its obligations under this Agreement or Buyer's breach of any material representation under this Agreement, which remedy shall be the sole and exclusive remedy available legal to Seller for Buyer's failure to perform or breach. Buyer and equitable remediesSeller acknowledge and agree that (i) Seller's actual damages upon the event of such a termination are difficult to ascertain with any certainty, (ii) that the Deposit is a reasonable estimate of such actual damages and (iii) such liquidated damages do not constitute a penalty. (b) If this Agreement is terminated by the mutual written agreement of Buyer and Seller, or if the Closing does not occur on or before the Closing Date for any reason other than as set forth in Section 11.01(b), then Seller shall return the Deposit to Buyer in immediately available funds within three (3) Business Days after the event giving rise to such payment to Buyer. Buyer and Seller shall thereupon have the rights and obligations set forth elsewhere herein. (c) If all conditions precedent to the obligations of Grantor Seller set forth in Article 8 VII have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because of the negligent or willful failure of Grantor Seller to perform any of its material obligations hereunder in any material respect, or the breach of any material representation or warranty herein by GrantorSeller and Seller fails to cure same within ten (10) Business Days after receipt of written notice of such breach from Buyer, then in such event, Grantee Buyer shall have the option right to terminate this Agreement, in which case as Grantee may pursue all available legal and equitable remedies, including, without limitation, specific performance. (c) Notwithstanding anything to the contrary in this Agreement, in no event shall any Party be entitled to receive any punitive, indirect or consequential damages unless same are a part of a third Person claim for which a Party is seeking indemnification hereunder, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF THE OTHER PARTY, BUT EXPRESSLY EXCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

Termination Damages. (a) If all conditions precedent to the obligations of Grantee set forth in Article 9 have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because of the negligent or willful failure of Grantee to perform any of its obligations hereunder in any material respect, or the material breach of any representation or warranty herein by Grantee, then in such event, Grantor shall have the Sellers exercise their option to terminate this AgreementAgreement pursuant to Section 11.01(h) or Section 11.01(i), in which case Grantor may pursue all available legal Sellers shall be entitled to retain the Deposit, as liquidated damages (“Sellers’ Damage Amount”), on account of Buyer’s failure to perform its obligations under this Agreement and equitable remediesconsummate the Closing. Buyer and Sellers acknowledge and agree that (i) Sellers’ actual damages upon the event of such a termination are difficult to ascertain with any certainty, (ii) Sellers’ Damage Amount is a reasonable estimate of such actual damages and (iii) such liquidated damages do not constitute a penalty. (b) If all conditions precedent to the obligations of Grantor set forth in Article 8 have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because of the negligent or willful failure of Grantor to perform any of its obligations hereunder in any material respect, or the breach of any representation or warranty herein by Grantor, then in such event, Grantee shall have the option to terminate this Agreement, in which case as Grantee may pursue all available legal and equitable remedies, including, without limitation, specific performance. (c) Notwithstanding anything to the contrary in this Agreement, but subject in all respects to Section 11.04 and the proviso in this sentence, (i) an order of specific performance or other equitable relief in accordance with Section 11.04 and (ii) the valid termination of this Agreement pursuant to this Article XI and if, as and when required pursuant to this Section 11.03, receipt and payment of the Sellers’ Damage Amount, if applicable, together with the payment of any amounts due pursuant to Section 11.05, shall be the sole and exclusive remedy of the Sellers and their Affiliates suffered as a result of the failure of the Closing to be consummated or for a breach or failure by Buyer to perform hereunder or otherwise, in either case that resulted in failure of the Closing to be consummated and upon payment of the Sellers’ Damage Amount, if applicable, and payment of any amounts payable pursuant to Section 11.05, if applicable, none of the Buyer or its Affiliates shall have any further liability or obligation to the Sellers or their Affiliates relating to or arising out of this Agreement or the transactions contemplated hereby and thereby (and the abandonment or termination hereof or thereof); provided, that nothing herein shall impair the rights and remedies of the Sellers with respect to (i) those provisions that survive termination in accordance with Section 11.02, (ii) Fraud or material breach by the Buyer of its representations, warranties, covenants, agreements or other obligations hereunder occurring prior to the termination of this Agreement pursuant to Section 11.01 and (iii) Article XIV. For the avoidance of doubt, the Sellers may simultaneously or at different times pursue specific performance pursuant to Section 11.04 and the Sellers’ Damage Amount, if applicable; provided, that in no event shall any Party Sellers be entitled to receive any punitiveboth (x) payment of the Sellers’ Damage Amount, indirect or consequential damages unless same are a part if applicable, and (y) specific performance pursuant to Section 11.04 which results in the consummation of a third Person claim for which a Party is seeking indemnification hereunder, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF THE OTHER PARTY, BUT EXPRESSLY EXCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCTthe Closing.

Termination Damages. (a) If all conditions precedent to the obligations of Grantee Buyer set forth in Article 9 VIII (except for those conditions that by their nature are to be satisfied at the Closing) have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because of the negligent or willful failure of Grantee Buyer to perform any of its material obligations hereunder in any material respect, or the material breach of any representation or warranty herein by GranteeBuyer, then in such event, Grantor Seller shall have the option to terminate this AgreementAgreement pursuant to Section 11.01(b) and, shall be entitled to exercise any and all other rights and remedies at law or in which case Grantor may pursue all available legal and equitable remediesequity. (b) If all conditions precedent to the obligations of Grantor Seller set forth in Article 8 VII (except for those conditions that by their nature are to be satisfied at the Closing) have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because of the negligent or willful failure of Grantor Seller or Parent to perform any of its material obligations hereunder or the breach of any representation herein by Seller or Parent, then in such event, Buyer shall have the right to terminate this Agreement pursuant to Section 11.01(b) or Section 11.01(e) and shall be entitled to exercise any and all other rights and remedies at law or in equity. (c) If this Agreement is terminated by Buyer pursuant to Section 11.01(e), then Seller shall, immediately and in any event within one Business Day after termination, pay to Buyer a fee of $5,000,000 in immediately available funds. (d) If (i) at any time prior to termination of this Agreement an Acquisition Proposal is made, or any Person announces any plan or intention, conditional or otherwise, to make an Acquisition Proposal, and (ii) thereafter either the Parent Securityholders do not approve the sale of the Assets as contemplated in Section 13.03 or the sale of the Assets as provided herein is not submitted to the Parent Securityholders for approval, and (iii) such Acquisition Proposal, an amended version thereof or any other Acquisition Proposal is consummated within 12 months after the date on which the first mentioned Acquisition Proposal is made or any such plan or intention is announced, then Seller shall, immediately and in any event within one Business Day after the first-mentioned Acquisition Proposal, an amended version thereof or any other Acquisition Proposal is consummated, pay to Buyer a fee of $5,000,000 in immediately available funds. (e) For clarity, payment of the fee provided for in Section 11.01(f), Section 11.03(c), Section 11.03(d) or Section 13.11(c)(vi)(C)(5) is not, and shall not be construed as, Buyer’s sole and exclusive remedy for any failure of Seller or Parent to perform any of its obligations hereunder in any material respect, or the breach of any representation or warranty herein by GrantorSeller or Parent, then in such event, Grantee shall have the option to terminate this Agreementand Buyer shall, in which case addition to receiving payment under Section 11.01(f), Section 11.03(c), Section 11.03(d) or Section 13.11(c)(vi)(C)(5), as Grantee may pursue all available legal and equitable remediesapplicable, including, without limitation, specific performance. (c) Notwithstanding anything to the contrary in this Agreement, in no event shall any Party be entitled to receive exercise any punitiveand all other rights and remedies at law or in equity. For further clarity, indirect Seller or consequential damages unless same are a part Parent shall not be obligated to pay more than one fee under Section 11.01(f), Section 11.03(c), Section 11.03(d) or Section 13.11(c)(vi)(C)(5) totaling in the aggregate the sum of a third Person claim for which a Party is seeking indemnification hereunder, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF THE OTHER PARTY, BUT EXPRESSLY EXCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT$5,000,000.

Termination Damages. (a) If all conditions precedent to the obligations of Grantee Purchaser set forth in Article 9 11 have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because of the negligent or willful failure of Grantee Purchaser to perform any of its obligations hereunder in any material respect, or the material breach of any representation or warranty herein by GranteePurchaser, then in such event, Grantor Sellers shall have the option to terminate this Agreement, in which case Grantor Sellers may pursue all available legal and equitable remedies. (b) If all conditions precedent to the obligations of Grantor Sellers set forth in Article 8 10 have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because of the negligent or willful failure of Grantor any Seller to perform any of its obligations hereunder in any material respect, or the breach of any representation or warranty herein by Grantorany Seller, then in such event, Grantee Purchaser shall have the option to terminate this Agreement, in which case as Grantee Purchaser may pursue all available legal and equitable remedies, including, without limitation, specific performance. (c) Notwithstanding anything to the contrary in this Agreement, in no event shall any Party be entitled to receive any punitive, indirect or consequential damages unless same are a part of a third Person claim for which a Party is seeking indemnification hereunder, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF THE OTHER PARTY, BUT EXPRESSLY EXCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

Termination Damages. (a) If all conditions precedent to the obligations of Grantee Purchaser set forth in Article 9 11 have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because of the negligent or willful failure of Grantee Purchaser to perform any of its obligations hereunder in any material respect, or the material breach of any representation or warranty herein by GranteePurchaser, then in such event, Grantor Sellers shall have the option to terminate this Agreement, in which case Grantor Sellers may pursue all available legal and equitable remedies. (b) If all conditions precedent to the obligations of Grantor Sellers set forth in Article 8 10 have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because of the negligent or willful failure of Grantor any Seller to perform any of its obligations hereunder in any material respect, or the breach of any representation or warranty herein by Grantorany Seller, then in such event, Grantee Purchaser shall have the option to terminate this Agreement, in which case as Grantee Purchaser may pursue all available legal and equitable remedies, including, without limitation, specific performance. (c) Notwithstanding anything to the contrary in this Agreement, in no event shall any Party be entitled to receive any punitive, indirect or consequential damages unless same are a part of a third Person claim for which a Party is seeking indemnification hereunder, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF THE OTHER PARTY, BUT EXPRESSLY EXCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

Termination Damages. (a) If all of the conditions precedent to the obligations of Grantee set forth in Article 9 Buyer hereunder have been met and met, the transactions contemplated by this Agreement hereby are not consummated on or before the Target Closing Date because of the negligent or willful Buyer’s failure of Grantee to perform any of its material obligations hereunder in any material respect, or the Buyer’s material breach of any representation or warranty herein by Granteeherein, Seller has performed all of its material obligations hereunder and has not breached any of its representations herein, and Seller is ready, willing and able to close the transactions contemplated hereby, then in such event, Grantor Seller shall have the option to terminate this Agreement, in which case Grantor may pursue all case, within three (3) Business Days after the event giving rise to such termination, Seller shall be entitled to receive the Deposit, plus any interest accrued thereon, from the Deposit Bank, free of any claims by Buyer with respect thereto, as liquidated damages on account of Buyer’s failure to perform its obligations hereunder, which remedy shall be the sole and exclusive remedy available legal to Seller for Buyer’s failure to perform. Buyer and equitable remediesSeller acknowledge and agree that (i) Seller’s actual damages upon the event of such a termination are difficult to ascertain with any certainty, (ii) the Deposit, plus any interest accrued thereon, is a reasonable estimate of such actual damages and (iii) such liquidated damages do not constitute a penalty. Notwithstanding the foregoing, in the event that the transactions contemplated hereby are not consummated on or before the Target Closing Date as a result of the conditions set forth in Section 7.01(b) not having been satisfied, Seller shall not be entitled to receive the Deposit, plus any interest accrued thereon, from the Deposit Bank, and instead Buyer shall be entitled to receive the Deposit, plus any interest accrued thereon, from the Deposit Bank, free of any claims by Seller with respect thereto. (b) If all of the conditions precedent to the obligations of Grantor set forth in Article 8 Seller hereunder have been met and met, the transactions contemplated by this Agreement hereby are not consummated on or before the Target Closing Date because of the negligent or willful Seller’s failure of Grantor to perform any of its material obligations hereunder in any material respect, or the Seller’s breach of any representation or warranty herein by Grantorherein, Buyer has performed all of its material obligations hereunder and has not breached any of its representations herein, and Buyer is ready, willing and able to close the transactions contemplated hereby, then in such event, Grantee Buyer shall have the option to (i) terminate this Agreement, in which case case, within three (3) Business Days after the event giving rise to such termination, Buyer shall be entitled to receive the Deposit, plus any interest accrued thereon, from the Deposit Bank, free of any claims by Seller with respect thereto, and Buyer shall be entitled to receive the Deposit (as Grantee may pursue all available legal defined therein) under the Fund XI Purchase and equitable remediesSale Agreement, includingplus any interest accrued thereon, without limitationfrom the Deposit Bank (as defined therein), free of any claims by Seller with respect thereto or (ii) seek specific performance. (c) Notwithstanding anything If this Agreement is terminated for any reason other than as set forth in Section 12.03(a) or Section 12.03(b), then within three (3) Business Days after the event giving rise to the contrary in this Agreementsuch termination, in no event Buyer shall any Party be entitled to receive the Deposit, plus any punitiveinterest accrued thereon, indirect or consequential damages unless same are a part from the Deposit Bank, free of a third Person claim for which a Party is seeking indemnification hereunder, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF THE OTHER PARTY, BUT EXPRESSLY EXCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCTany claims by Seller with respect thereto.

Termination Damages. (a) If all conditions precedent In addition to any other remedy available to the obligations Owner at law or in equity, all of Grantee set forth in Article 9 have been met and which other remedies are reserved unto the transactions contemplated by this Agreement are not consummated on or before Owner, the Closing Date because of the negligent or willful failure of Grantee to perform any of its obligations hereunder in any material respect, or the material breach of any representation or warranty herein by Grantee, then in such event, Grantor Owner shall have the option right to immediately terminate the Tenant's right to possession of the Premises and/or this Agreement, in which case Grantor may pursue Lease and all available legal and equitable remedies. (b) If all conditions precedent rights of the Tenant hereunder by delivering a written notice of termination to the obligations of Grantor set forth in Article 8 have been met Tenant. In the event that the Owner elects to so terminate such possession and/or this Lease, such election shall constitute the election by the Owner to accelerate all future rents payable under this Lease to be immediately due and payable and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because of the negligent or willful failure of Grantor to perform any of its obligations hereunder in any material respect, or the breach of any representation or warranty herein by Grantor, then in such event, Grantee Owner shall have the option right to terminate this Agreement, in which case as Grantee may pursue all available legal and equitable remedies, including, without limitation, specific performance.recover from the Tenant the following: (ci) Notwithstanding anything The worth at the time of award of any unpaid rent which has been earned at the time of such termination; plus (ii) The worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss the Tenant proves could have reasonably been avoided; plus (iii) The worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that the Tenant proves could have reasonably been avoided; plus (iv) Any other amount necessary to compensate the contrary Owner for all detriment proximately caused by the Tenant's failure to perform the obligations under this Lease or which in this Agreementthe ordinary course of things would likely to result therefrom; plus (v) Reasonable attorneys' fees incurred by the Owner as the result of such material default and breach and costs in the event suit is filed by the Owner to enforce any remedy; plus (vi) At Owner's election, such other amounts in no event shall any Party addition to or in lieu of the foregoing as may be entitled permitted from time to receive any punitive, indirect or consequential damages unless same are a part of a third Person claim for which a Party is seeking indemnification hereunder, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF THE OTHER PARTY, BUT EXPRESSLY EXCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCTtime by applicable law.

Termination Damages. (a) If all of the conditions precedent to the obligations of Grantee set forth in Article 9 Buyer hereunder have been met and met, the transactions contemplated by this Agreement hereby are not consummated on or before the Target Closing Date because of the negligent or willful Buyer’s failure of Grantee to perform any of its material obligations hereunder in any material respect, or the Buyer’s material breach of any representation or warranty herein by Granteeherein, Seller has performed all of its material obligations hereunder and has not breached any of its representations herein, and Seller is ready, willing and able to close the transactions contemplated hereby, then in such event, Grantor Seller shall have the option to terminate this Agreement, in which case Grantor may pursue all case, within three (3) Business Days after the event giving rise to such termination, Seller shall be entitled to receive the Deposit, plus any interest accrued thereon, from the Deposit Bank, free of any claims by Buyer with respect thereto, as liquidated damages on account of Buyer’s failure to perform its obligations hereunder, which remedy shall be the sole and exclusive remedy available legal to Seller for Buyer’s failure to perform. Buyer and equitable remediesSeller acknowledge and agree that (i) Seller’s actual damages upon the event of such a termination are difficult to ascertain with any certainty, (ii) the Deposit, plus any interest accrued thereon, is a reasonable estimate of such actual damages and (iii) such liquidated damages do not constitute a penalty. Notwithstanding the foregoing, in the event that the transactions contemplated hereby are not consummated on or before the Target Closing Date as a result of the conditions set forth in Section 7.01(b) not having been satisfied, Seller shall not be entitled to receive the Deposit, plus any interest accrued thereon, from the Deposit Bank, and instead Buyer shall be entitled to receive the Deposit, plus any interest accrued thereon, from the Deposit Bank, free of any claims by Seller with respect thereto. (b) If all of the conditions precedent to the obligations of Grantor set forth in Article 8 Seller hereunder have been met and met, the transactions contemplated by this Agreement hereby are not consummated on or before the Target Closing Date because of the negligent or willful Seller’s failure of Grantor to perform any of its material obligations hereunder in any material respect, or the Seller’s breach of any representation or warranty herein by Grantorherein, Buyer has performed all of its material obligations hereunder and has not breached any of its representations herein, and Buyer is ready, willing and able to close the transactions contemplated hereby, then in such event, Grantee Buyer shall have the option to (i) terminate this Agreement, in which case case, within three (3) Business Days after the event giving rise to such termination, Buyer shall be entitled to receive the Deposit, plus any interest accrued thereon, from the Deposit Bank, free of any claims by Seller with respect thereto, and Buyer shall be entitled to receive the Deposit (as Grantee may pursue all available legal defined therein) under the Fund X Purchase and equitable remediesSale Agreement, includingplus any interest accrued thereon, without limitationfrom the Deposit Bank (as defined therein), free of any claims by Seller with respect thereto or (ii) seek specific performance. (c) Notwithstanding anything If this Agreement is terminated for any reason other than as set forth in Section 12.03(a) or Section 12.03(b), then within three (3) Business Days after the event giving rise to the contrary in this Agreementsuch termination, in no event Buyer shall any Party be entitled to receive the Deposit, plus any punitiveinterest accrued thereon, indirect or consequential damages unless same are a part from the Deposit Bank, free of a third Person claim for which a Party is seeking indemnification hereunder, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF THE OTHER PARTY, BUT EXPRESSLY EXCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCTany claims by Seller with respect thereto.

Termination Damages. (a) If all conditions precedent set forth in Article VII to the obligations of Grantee set forth in Article 9 Seller to Close have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date solely because of the negligent or willful failure of Grantee Buyer to perform any of its material obligations hereunder in any material respect, or the material breach of any representation or warranty herein by GranteeBuyer, then in such event, Grantor shall have the and Seller exercises its option to terminate pursuant to Section 11.01(b) or (d), above, then Seller shall retain the Deposit as liquidated damages on account of Buyer’s failure to perform its obligations under this Agreement or Buyer’s breach of any representation under this Agreement, in which case Grantor may pursue all remedy shall be the sole and exclusive remedy available legal to Seller for Buyer’s failure to perform or breach. Buyer and equitable remediesSeller acknowledge and agree that (i) Seller’s actual damages upon the event of such a termination are difficult to ascertain with any certainty, (ii) that the Deposit is a reasonable estimate of such actual damages and (iii) such liquidated damages do not constitute a penalty. (b) If this Agreement is terminated by the mutual written agreement of Buyer and Seller, or if the Closing does not occur on or before the Closing Date, for any reason other than as set forth in either Subsection (a) or (c) of this Section, then Seller shall return the Deposit to Buyer in immediately available funds within three (3) Business Days after the event giving rise to such payment to Buyer, whereupon neither Buyer nor Seller shall any further obligation hereunder. (c) If all conditions precedent set forth in Article VIII to the obligations of Grantor set forth in Article 8 Buyer to Close have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date solely because of the negligent or willful failure of Grantor Seller to perform any of its material obligations hereunder in any material respect, or the material breach of any representation or warranty herein by GrantorSeller, and then in such eventaddition to Seller returning the Deposit to Buyer as provided Buyer may recover its actual damages or, Grantee shall have the option to terminate this Agreementalternatively, in which case as Grantee may pursue all available legal and equitable remedies, including, without limitation, seek specific performance. (c) Notwithstanding anything to the contrary in this Agreement, provided, that in no event shall any Party either party be entitled to receive any punitive, indirect or recover either consequential damages unless same are a part of a third Person claim for which a Party is seeking indemnification hereunder, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF THE OTHER PARTY, BUT EXPRESSLY EXCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCTor punitive damages from the other in any action relating to or arising under this Agreement.

Termination Damages. (a) If all conditions precedent to the obligations of Grantee Buyer set forth in Article 9 have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because of the negligent or willful failure of Grantee Buyer to perform any of its obligations hereunder in any material respect, or the material breach of any representation or warranty herein by GranteeBuyer, then in such event, Grantor Seller shall have the option to terminate this Agreement, in which case Grantor Seller may pursue all available legal and equitable remedies. (b) If all conditions precedent to the obligations of Grantor Seller set forth in Article 8 have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because of the negligent or willful failure of Grantor Seller to perform any of its obligations hereunder in any material respect, or the breach of any representation or warranty herein by GrantorSeller, then in such event, Grantee Buyer shall have the option to terminate this Agreement, in which case as Grantee Buyer may pursue all available legal and equitable remedies, including, without limitation, specific performance. (c) Notwithstanding anything to the contrary in this Agreement, in no event shall any Party be entitled to receive any punitive, indirect or consequential damages unless same are a part of a third Person claim for which a Party is seeking indemnification hereunder, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF THE OTHER PARTY, BUT EXPRESSLY EXCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

Termination Damages. (a) If all conditions precedent to the obligations of Grantee Purchaser set forth in Article 9 VIII have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because of (i) the negligent or willful failure of Grantee Purchaser to perform any of its obligations hereunder in any material respect, respect or the material breach of (ii) any representation or warranty of Purchaser contained herein that are qualified by Granteemateriality are not true and correct in all respects and/or if such representation or warranty is not qualified by materiality is not true and correct in all material respects, then in such event, Grantor Seller shall have the option to terminate this Agreement, in which case Grantor may pursue all Seller shall have the right to receive the Escrow Fund as liquidated damages, which remedy shall be the sole and exclusive remedy available legal to Seller for Purchaser’s failure to perform or breach. Purchaser and equitable remediesSeller acknowledge and agree that (i) Seller’s actual damages upon the event of such a termination are difficult to ascertain with any certainty, (ii) that the Escrow Fund is a reasonable estimate of such actual damages and (iii) such liquidated damages do not constitute a penalty. (b) If all conditions precedent to the obligations of Grantor set forth in Article 8 have been met and the transactions contemplated by this Agreement are is terminated by the mutual written agreement of Purchaser and Seller, or if the Closing does not consummated occur on or before the Closing Date because of the negligent or willful failure of Grantor to perform Date, for any of its obligations hereunder reason other than as set forth in any material respect, or the breach of any representation or warranty herein by Grantorthis Section 13.03, then Seller shall direct that the Escrow Fund be returned to Purchaser in immediately available funds within three (3) Business Days after such event, Grantee termination. Purchaser and Seller shall thereupon have the option to terminate this Agreement, in which case as Grantee may pursue all available legal rights and equitable remedies, including, without limitation, specific performanceobligations set forth elsewhere herein. (c) Notwithstanding anything to the contrary in this Agreement, in no event shall any Party be entitled to receive any punitive, indirect or consequential damages unless same are a part of a third Person claim for which a Party is seeking indemnification hereunder, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF THE OTHER PARTY, BUT EXPRESSLY EXCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

Termination Damages. (a) If all conditions precedent to the obligations of Grantee Buyer set forth in Article 9 VIII have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because of the negligent or willful failure of Grantee Buyer to perform any of its material obligations hereunder in any material respect, or the material breach of any representation or warranty herein by GranteeBuyer, then in such event, Grantor Seller shall have the option to terminate this Agreement, in which case Grantor may pursue Seller shall retain (i) the Deposit and any accrued interest, (ii) intellectual property, data, reports of Buyer and Buyer’s agents and contractors related to the Big Muddy field, except to the extent said reports and data are not subject to the attorney-client or work-product privileges, and (iii) improvements, tools, equipment, and fixtures related to the Big Muddy field, all of (i) through (iii) to be deemed liquidated damages on account of Buyer’s failure to perform its obligations under this Agreement or Buyer’s breach of any representation under this Agreement, which remedy shall be the sole and exclusive remedy available legal to Seller for Buyer’s failure to perform or breach. Buyer shall also be responsible for paying the costs and equitable remediesexpenses stated in Section 13.01(b)(ii)-(vii). Buyer and Seller acknowledge and agree that (i) Seller’s actual damages upon the event of such a termination are difficult to ascertain with any certainty, (ii) that the Deposit is a reasonable estimate of such actual damages and (iii) such liquidated damages do not constitute a penalty. (b) If all conditions precedent this Agreement is terminated under paragraphs (c), (f), or (g) of Section 11.01 or by the mutual written agreement of Buyer and Seller, then Seller shall return the Deposit with accrued interest to Buyer in immediately available funds within three (3) Business Days after the event giving rise to such payment to Buyer. Buyer and Seller shall thereupon have the rights and obligations of Grantor set forth in Article 8 have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because of the negligent or willful failure of Grantor to perform any of its obligations hereunder in any material respect, or the breach of any representation or warranty herein by Grantor, then in such event, Grantee shall have the option to terminate this Agreement, in which case as Grantee may pursue all available legal and equitable remedies, including, without limitation, specific performanceelsewhere herein. (c) Notwithstanding anything to the contrary in this Agreement, in no event shall any Party be entitled to receive any punitive, indirect or consequential damages unless same are a part of a third Person claim for which a Party is seeking indemnification hereunder, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF THE OTHER PARTY, BUT EXPRESSLY EXCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.