Common use of Termination Remedies Clause in Contracts

Termination Remedies. (a) If all conditions precedent to the obligations of Buyer set forth in Article VII, or of Seller set forth in Article VIII, (such Party that has satisfied its conditions precedent, the “Performing Party”) have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because of the failure of Buyer or Seller to perform any of its material obligations hereunder or the breach of any representation herein by Buyer or Seller (such party that has not satisfied its conditions precedent, the “Breaching Party”) and the Performing Party has performed all of its material obligations hereunder and has not breached any representation herein, then in such event, the Performing Party shall have the option to terminate this Agreement, in which case (i) if Buyer is the Breaching Party, 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, which remedy shall be the sole and exclusive remedy available to Seller for Buyer’s breaches or (ii) if Seller is the Breaching Party, then Seller shall return the Deposit to Buyer in immediately available funds within three (3) calendar days after receipt of Buyer’s notice of termination. Buyer and Seller acknowledge and agree that (i) the 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. Additionally, if Seller is the Breaching Party, in lieu of terminating this Agreement, Buyer shall have the right of specific performance of this Agreement. (b) If this Agreement is terminated for any reason, other than as set forth in Section 11.03(a), then Seller shall return the Deposit to Buyer in immediately available funds within three (3) calendar 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.

Termination Remedies. (a) If all conditions precedent on the Closing Deadline (or any earlier date designated for the Closing in accordance with Section 3(a) hereof): (i) the Transferee Closing Conditions have been satisfied; and (ii) either of Transferee or the REIT shall fail or refuse to close the transactions contemplated hereby (including, in the case of the REIT, advancing the Additional Loan), whether due to the obligations failure of Buyer set forth Transferee to obtain the Audited Financials or for any other reason or for no reason; and (iii) Transferor is ready, willing and able to close the transactions contemplated hereby (or, in Article VII, or the event that any of Seller set forth in Article VIII, (such Party that has satisfied its conditions precedent, the “Performing Party”) Transferor Closing Conditions shall not have been met satisfied, Transferor would be ready, willing and able to close the transactions contemplated hereby but for such unsatisfied Transferor Closing Conditions), then Transferor may elect one of the following as its sole and exclusive remedy: (x) to commence and prosecute an action for specific performance of Transferee’s obligations hereunder; or (y) to terminate this Agreement by written notice to Transferee, whereupon Transferee shall forthwith pay to Transferor the amount of $6,082,000 as liquidated damages, and the parties hereto shall have no further rights or obligations to each other under this Agreement, except for Section 7(d) hereof; provided, however, that if the failure or refusal of Transferee or the REIT to close is due to the failure of Transferee to obtain the Audited Financials, then Transferor will be entitled to terminate this Agreement and receive liquidated damages from Transferee as provided by clause (y), above, but shall not be entitled to seek specific performance. (b) If on the Closing Deadline (or any earlier date designated for the Closing in accordance with Section 3(a) hereof): (i) the Transferor Closing Conditions have been satisfied; and (ii) Transferor shall fail or refuse to close the transactions contemplated hereby; and (iii) each of Transferee and the REIT is ready, willing and able to close the transactions contemplated hereby (or, in the event that any of the Transferee Closing Conditions shall not have been satisfied, each of Transferee and the REIT would be ready, willing and able to close the transactions contemplated hereby but for such unsatisfied Transferee Closing Conditions), then, Transferee and the REIT may collectively, as their sole and exclusive remedy, commence and prosecute an action for specific performance of Transferor’s obligations hereunder; provided, however, that if the conditions in Section 7(b)(i) through (iii) are all satisfied and a court of competent jurisdiction holds that the remedy of specific performance is not available to Transferee and the REIT and such court’s order becomes a final and non-appealable order (whether through the lapse of time or the exhaustion of appeals), then, Transferor and Transferee shall each have the right to terminate this Agreement by written notice to the other, whereupon, except as provided below, Transferor shall pay to Transferee the amount of $6,082,000 as liquidated damages, and the parties hereto shall have no further rights or obligations to each other under this Agreement, except for Section 7(d) hereof; provided further, however, that Transferee and the REIT shall not be entitled to any damages (liquidated or otherwise), and either Transferee or Transferor shall be entitled to terminate this Agreement, if Transferor’s failure or refusal to close the transactions contemplated hereby is due to any of the following: (A) the existence of an order, injunction or decree issued by any court or agency of competent jurisdiction or other legal restraint or prohibition preventing the consummation by Transferor of the transactions contemplated by this Agreement are not consummated on Agreement, or before (B) the Closing Date because existence of a statute, rule, regulation, order, injunction or decree enacted, entered, promulgated or enforced by any Governmental Authority which prohibits or makes illegal the consummation by Transferor of the failure transactions contemplated hereby, unless in the case of Buyer the matters described in the foregoing clause (A) or Seller to perform any of its material obligations hereunder or the breach of any representation herein by Buyer or Seller (such party that has not satisfied its conditions precedentB), the “Breaching Party”) and the Performing Party has performed all of its material obligations hereunder and has not breached any representation herein, then in such event, the Performing Party shall have the option to terminate this Agreement, in which case (i) if Buyer restraint or prohibition is the Breaching Party, Seller shall retain the Deposit as liquidated damages on account result of Buyer’s failure wrongful acts or omissions by Transferor to perform avoid its obligations under this Agreement or Buyer’s is the result of a breach of any representation under this Agreement, which remedy shall be of Transferor’s representations and warranties (other than a breach that is caused by any of the sole and exclusive remedy available to Seller for Buyer’s breaches situations described in the foregoing clauses (A) or (iiB)) or, in the case of an injunction or other proceeding to prevent the consummation of the transactions contemplated hereby, if Seller is Transferor did not vigorously defend against the Breaching Partyimposition of such injunction or such other proceeding. (c) Subject to the proviso set forth at the end of Section 7(a), then Seller shall return the Deposit to Buyer Transferee acknowledges that in immediately available funds within three (3) calendar days after receipt of Buyer’s notice of termination. Buyer and Seller acknowledge and agree that (i) the Seller’s actual damages upon the event of such a termination are difficult to ascertain with any certaintythat the conditions set forth in Section 7(a)(i), (ii) that the Deposit is a reasonable estimate of such actual damages and (iii) such are satisfied: (x) Transferor will have no adequate remedy at law for the damages caused to Transferor thereby, in part because the transaction contemplated by this Agreement is for a transfer of property representing indirect interests in real estate; and (y) the damages caused to Transferor thereby will not be readily ascertainable, and that the liquidated damages do remedy provided by Section 7(a) is a reasonable approximation of Transferor’s prospective damages, and not constitute a penalty. Additionallypenalty for non-performance, if Seller is and Transferee hereby waives (A) all objections to Transferor’s right to elect the Breaching Partyliquidated damages remedy, and (B) all challenges to the amount of liquidated damages provided for herein, in lieu each case whether on the grounds that damages are readily ascertainable, that the remedy constitutes an unenforceable penalty, or otherwise. (d) Subject to the proviso set forth at the end of terminating Section 7(b), Transferor acknowledges that in the event that the conditions set forth in Section 7(b)(i), (ii) and (iii) are satisfied: (x) Transferee will have no adequate remedy at law for the damages caused to Transferee thereby, in part because the transaction contemplated by this AgreementAgreement is for a transfer of property representing indirect interests in real estate; and (y) the damages caused to Transferee thereby will not be readily ascertainable, Buyer and that the liquidated damages remedy provided by Section 7(b) is a reasonable approximation of Transferee’s prospective damages, and not a penalty for non-performance, and if Transferee is entitled to liquidated damages pursuant to Section 7(b), Transferor hereby waives any challenge to the amount of liquidated damages provided for herein, in each case whether on the grounds that damages are readily ascertainable, that the remedy constitutes an unenforceable penalty, or otherwise. (e) If on the Closing Deadline (x) the transactions contemplated hereby have not been consummated, and (y) neither Transferor nor Transferee are entitled to elect liquidated damages as a remedy pursuant to Sections 7(a) or 7(b), respectively, then this Agreement shall terminate, and the parties hereto shall have the right of specific performance of no further rights or obligations to each other under this Agreement. (bf) If either Transferee or Transferor fails to pay to the other any amounts payable under this Agreement Section 7 within ten (10) days after the date in which a written notice of termination is terminated for any reasondelivered pursuant to clause (y) of Section 7(a) or 7(b) hereof, other than as set forth in Section 11.03(athe case may be, (the “Default Date”), then Seller (i) the defaulting party shall return reimburse the Deposit non-defaulting party for all costs and expenses (including without limitation attorney’s fees) incurred in connection with the collection of such overdue amount and the enforcement by the non-defaulting party of its rights under this Section 7, and (ii) the defaulting party shall pay to Buyer the non-defaulting party interest on such overdue amount at a rate of 15% per annum for the period commencing on the Default Date and ending on the date such overdue amount is actually paid to the non-defaulting party in immediately available funds within three full. (3g) calendar days after For purposes of this Section 7, “Governmental Authority” means any nation, state, territory, province, county, city or other unit or subdivision thereof or any entity, authority, agency, department, board, commission, instrumentality, court or other judicial body authorized on behalf of any of the event giving rise foregoing to such payment exercise legislative, judicial, regulatory or administrative functions and any governmental or nongovernmental self-regulatory organization of which any of the parties to Buyer. Buyer and Seller shall thereupon have this Agreement was or is a member or to whose regulations any of the rights and obligations set forth elsewhere hereinparties to this Agreement was or is subject.

Termination Remedies. (a) If all conditions precedent to Following the obligations occurrence of Buyer set forth in Article VIIany Event of Default, or of Seller set forth in Article VIII, (such Party that has satisfied its conditions precedent, Landlord may terminate this Lease and thereafter re enter the “Performing Party”) have been met Premises and dispossess Tenant and the transactions contemplated by this Agreement are not consummated on legal representative of Tenant or before the Closing Date because other occupant of the failure of Buyer or Seller to perform any of its material obligations hereunder or Premises by summary proceedings and remove their effects and hold the breach of any representation herein by Buyer or Seller (such party that has Premises as if this Lease had not satisfied its conditions precedent, the “Breaching Party”) and the Performing Party has performed all of its material obligations hereunder and has not breached any representation herein, then in such event, the Performing Party shall have the option to terminate this Agreement, in which case (i) if Buyer is the Breaching Party, 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, which remedy shall be the sole and exclusive remedy available to Seller for Buyer’s breaches or (ii) if Seller is the Breaching Party, then Seller shall return the Deposit to Buyer in immediately available funds within three (3) calendar days after receipt of Buyer’s notice of termination. Buyer and Seller acknowledge and agree that (i) the 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. Additionally, if Seller is the Breaching Party, in lieu of terminating this Agreement, Buyer shall have the right of specific performance of this Agreementbeen made. (b) If this Agreement Lease is terminated for any reason, other than as set forth in under the provisions of Section 11.03(a)21.02(a) above, then Seller Tenant shall return (I) pay to Landlord all Base Rent and Additional Rent due to Landlord in respect of the Deposit period prior to Buyer such termination and (II) pay to Landlord as damages, at the election of Landlord, either: (i) a sum which at the time of such termination of this Lease represents the then present value (discounted at the Interest Rate in immediately available funds within three effect on the date of termination) of the excess, if any, of (1) the aggregate amount of the Base Rent and the Additional Rent which would have been payable by Tenant for the period commencing after the termination of this Lease and ending on the Expiration Date (or other date then set for the expiration of the Term) if this Lease had not been so terminated, over (2) the aggregate fair market rental value of the Premises for the same period (it being agreed that if the amount described in clause (3) calendar days of this subparagraph exceeds the amount described in subclause (1) of this subparagraph, Landlord shall have no obligation to pay Tenant all or any portion of the excess or to credit any part of the excess against any other sums or damages for which Tenant may be liable to Landlord at the time of termination), or (ii) sums equal to the Base Rent and the Additional Rent which would have been payable by Tenant had this Lease not so terminated, payable upon the due dates therefor as specified herein for the period commencing after the termination of this Lease and ending on the Expiration Date (or other date then set for the expiration of the Term), provided, however, that if Landlord shall relet the Premises during said period, Landlord shall credit Tenant with the net rents received by Landlord from such reletting, such net rents to be determined by first deducting from the gross rents as and when received by Landlord from such reletting the expenses reasonably incurred or paid by Landlord in terminating this Lease or in reentering the Premises and in securing possession thereof, as well as the reasonable expenses of reletting, including, without limitation, altering and preparing the Premises for new tenants, it being understood that in no event giving rise shall Tenant be entitled to receive any excess of such payment net rents over the sums payable by Tenant to BuyerLandlord hereunder. Buyer If this Lease shall be terminated pursuant to the provisions of this Section 21.02 then, to the extent required by applicable law, Landlord shall use good faith reasonable efforts to relet the Premises for a reasonable rental value and Seller shall thereupon have the rights and obligations set forth elsewhere hereinto otherwise mitigate Tenant’s damages payable hereunder.

Termination Remedies. (a) If all conditions precedent to the obligations of Buyer set forth in Article VII, or of Seller set forth in Article VIII, (such Party that has satisfied its conditions precedent, the “Performing Party”) have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because of the failure of Buyer or Seller to perform any of its material obligations hereunder or the breach of any representation herein by Buyer or Seller (such party that has not satisfied its conditions precedent, the “Breaching Party”) and the Performing Party has performed all of its material obligations hereunder and has not breached any representation herein, then in such event, the Performing Party shall have the option to terminate this Agreement, in which case (i) if Buyer is the Breaching Party, 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, which remedy shall be the sole and exclusive remedy available to Seller for Buyer’s breaches or (ii) if Seller is the Breaching Party, then Seller shall return the Deposit to Buyer in immediately available funds within three (3) calendar days after receipt of Buyer’s notice of termination. Buyer and Seller acknowledge and agree that (i) the 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. Additionally, if Seller is the Breaching Party, in lieu of terminating this AgreementAgreement and receiving the Deposit, Buyer shall have the right of specific performance of this Agreement. The option to terminate the Agreement and receive the Deposit or the right to seek specific performance are Buyer’s exclusive remedies for Seller’s breaches. (b) If this Agreement is terminated for any reason, other than as set forth in Section 11.03(a), then Seller shall return the Deposit to Buyer in immediately available funds within three (3) calendar 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.

Termination Remedies. (a) If all conditions precedent In the event that: 13.3.1 this Agreement shall be terminated by Buyer in accordance with Section 13.1.4 due to the obligations of Buyer set forth in Article VII, or of Seller set forth in Article VIII, (such Party that has satisfied its conditions precedent, the “Performing Party”) have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because inability of the failure of Buyer or Seller conditions to perform any of its material obligations hereunder or the breach of any representation herein by Buyer or Seller (such party that has not satisfied its conditions precedent, the “Breaching Party”) and the Performing Party has performed all of its material obligations hereunder and has not breached any representation herein, then in such event, the Performing Party shall have the option to terminate this Agreement, in which case (i) if Buyer is the Breaching Party, 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, which remedy shall be the sole and exclusive remedy available to Seller for Buyer’s breaches or (ii) if Seller is the Breaching Party, then Seller shall return the Deposit to Buyer in immediately available funds within three (3) calendar days after receipt of Buyer’s notice of termination. Buyer and Seller acknowledge and agree that (i) the 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. Additionally, if Seller is the Breaching Party, in lieu of terminating this Agreement, Buyer shall have the right of specific performance of this Agreement. (b) If this Agreement is terminated for any reason, other than as Closing set forth in Section 11.03(a)8.4 to be satisfied, then if, on or prior to the 6-month anniversary of the date of termination of this Agreement, (i) any Seller enters into any agreement or agreements with respect to the sale to any Person (other than Buyer and its Affiliates) of, an amount of its interests in the Archstone Entities equal to or greater than the portion of such Seller’s interests in the Archstone Entities on the date of this Agreement represented by the Purchased Interests held by it in one or a series of related transactions, and (ii) such sale of interests in the Archstone Entities to the Person referred to in clause (i) above is consummated in one or a series of related transactions, then such Seller shall return the Deposit pay to Buyer within 10 days following the date of such sale, an amount equal to 3.5% of any purchase price received by such Seller pursuant thereto (any amounts payable pursuant to this Section 13.3.1, the “Buyer Liquidated Damages Amount”). The Buyer Liquidated Damages Amount shall be payable, if applicable, under this Section 13.3, without further liability on the part of Sellers. Sellers agree that (a) the Contemplated Transactions are unique and that damages for failure by Sellers to consummate the Contemplated Transactions will be extremely difficult and impracticable to ascertain, (b) the Buyer Liquidated Damages Amount is a reasonable and rational estimate at this time and is an acceptable damages amount to Buyer upon the occurrence of the events described in immediately available funds within three Section 13.3.1, and (3c) calendar days after the event giving rise Buyer Liquidated Damages Amount is intended not as a penalty, but as full liquidated damages under this Agreement and as compensation for Buyer’s losses and other expenses associated with this Agreement solely with respect to such payment any termination of this Agreement by Buyer under Section 13.1.4 due to Buyer. Buyer and Seller shall thereupon have the rights and obligations inability of the conditions to Closing set forth elsewhere hereinin Section 8.4 to be satisfied. The agreements contained in this Section 13.3 are an integral part of the Contemplated Transactions and the Parties agree that, without these agreements, the Parties would not enter into this Agreement. In addition, the Parties acknowledge that in the absence of a waiver, a bond or undertaking may be required by a court and the Parties hereby waive any such requirement of such a bond or undertaking.

Termination Remedies. (a) If all conditions precedent an Event of Default occurs with respect to a Defaulting Party at any time during the Term, any Non‑Defaulting Party may, for so long as the Event of Default is continuing, provide written notice, following the expiration of any applicable cure period (the "Termination Notice"), to the obligations Defaulting Party of Buyer set forth in Article VII, or of Seller set forth in Article VIII, a date (which date shall be between fifteen (15) and one hundred twenty (120) Days after the Non‑Defaulting Party delivers such Party that has satisfied its conditions precedentnotice) on which this Agreement shall terminate ("Early Termination Date"). In addition, the “Performing Party”) have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because of the failure of Buyer or Seller to perform any of its material obligations hereunder or the breach of any representation herein by Buyer or Seller (such party that has not satisfied its conditions precedent, the “Breaching Party”) and the Performing Party has performed all of its material obligations hereunder and has not breached any representation herein, then in such event, the Performing Defaulting Party shall have the option to terminate this Agreement, any allocations or distributions due in which case (i) if Buyer is the Breaching Party, Seller shall retain the Deposit as liquidated damages on account respect of Buyer’s failure to perform its obligations under this Agreement or Buyer’s breach withheld for so long as the Event of any representation under this AgreementDefault is continuing; provided, which remedy shall be the sole and exclusive remedy available to Seller for Buyer’s breaches or (ii) if Seller is the Breaching Partyhowever, then Seller shall return the Deposit to Buyer in immediately available funds within three (3) calendar days after receipt of Buyer’s notice of termination. Buyer and Seller acknowledge and agree that (i) the Seller’s actual damages upon the occurrence of any Event of Default listed in Section 16.01(d) as it may apply to any Party, this Agreement shall automatically terminate, without notice and without any other action by any Party as if an Early Termination Date had been declared immediately prior to such event of such a termination are difficult to ascertain with any certainty, and (ii) that the Deposit is a reasonable estimate of such actual damages and (iii) such liquidated damages do not constitute a penalty. Additionallyexcept with respect to Section 16.01(d), if Seller the Defaulting Party or its permitted assignee cures such Event of Default no later than ten (10) Days (and no other Event of Default has occurred and is continuing) prior to the Breaching designated Early Termination Date, this Agreement shall not terminate. During the occurrence of an Event of Default by any Party, each Non-Defaulting Party in lieu of terminating such case, shall be excused from fulfilling its obligations expressed in this Agreement, Buyer shall have Agreement to the right of specific performance of this AgreementDefaulting Party. (b) If the Defaulting Party is PETROBRAS, (i) Genco shall be entitled to receive the Genco Termination Payment and (ii) PETROBRAS shall be liable for all Termination Costs. PETROBRAS shall be solely liable for each of the Genco Termination Payment and the Termination Costs and shall indemnify and hold harmless each of the other Parties with respect to the Genco Termination Payment or the Termination Costs in accordance with Section 24.01. The Non-Defaulting Party claiming the Event of Default shall notify PETROBRAS at least ten (10) Days prior to the Early Termination Date and PETROBRAS shall pay each of the Genco Termination Payment and the Termination Costs on the Early Termination Date. (c) If the Defaulting Party is Genco, (i) PETROBRAS shall be entitled to receive the PETROBRAS Termination Payment and (ii) Genco shall be liable for all Termination Costs. Genco shall be solely liable for each of the PETROBRAS Termination Payment and the Termination Costs and shall indemnify and hold harmless each of the other Parties with respect to the PETROBRAS Termination Payment or the Termination Costs in accordance with Section 24.01. The Non-Defaulting Party claiming the Event of Default shall notify Genco at least ten (10) Days prior to the Early Termination Date and Genco shall pay each of the PETROBRAS Termination Payment and the Termination Costs on the Early Termination Date. (d) If the Defaulting Party is ECE, on the Early Termination Date, this Agreement will remain in full force and effect and the membership of ECE in the Consortium shall be terminated. Genco shall have the sole and exclusive right to designate a substitute Person for ECE that demonstrates the commercial and operational capability to undertake the obligations of ECE under this Agreement; provided, however, that PETROBRAS shall have the right to consent to the appointment of the Genco designated Person, such consent not to be unreasonably withheld. For all purposes herein, the new Genco appointee shall be deemed to be ECE and shall assume all of the rights and obligations of ECE under this Agreement and each of PETROBRAS and Genco shall continue to retain all of its rights and obligations under this Agreement prior to the Early Termination Date. (e) To the extent that Genco is terminated the Affected Party with respect to an event of Political Force Majeure that is occurring on March 31, 2001 (which shall be the date upon which Genco anticipates transferring the gas-fired turbines to Genco's international carrier for any reason, other than as set forth in Section 11.03(ashipment to the Project Site), Genco shall have a period of one hundred eighty (180) Days to cure such Political Force Majeure. If Genco is able to cure such event of Political Force Majeure prior to the expiration of such one hundred eighty (180) Day period, Genco shall receive from the Consortium, in addition to any Commissioning Delay Charges, if any, a Day-for-Day extension for the dates contemplated under Sections 16.01(e) and (f). If, upon the expiration of such one hundred eighty (180) Day period, Genco is still unable to cure such event of Political Force Majeure, Genco shall have the right to terminate this Consortium Agreement and PETROBRAS shall pay the lesser of US$15,000,000.00 and the Local Expenses for the Project Site, free and clear of any liens and encumbrances; provided, however, that Genco shall have no on going obligation to develop the Project Site following such transfer. To the extent that Genco is the Affected Party with respect to an event of Political Force Majeure that is occurring during the period from March 31, 2001, until the Start Date, and Genco is unable to achieve the Start Date on June 30, 2002, (i) if Genco has not transferred the gas-fired turbines for the Merchant Project to Genco's international carrier for shipment to Brazil, PETROBRAS shall pay to Genco the lesser of US$15,000,000.00 and the Local Expenses, (ii) if Genco has transferred such turbines to Genco's international carrier for shipment, then Seller PETROBRAS shall return contribute to the Deposit Consortium the Genco Allocation (as if the Merchant Project has achieved Commercial Operations on June 30, 2002) for a period of time equal to Buyer in immediately available funds within three the lesser of (31) calendar days after twelve (12) consecutive months following the initiation of the event of Political Force Majeure or (2) the duration of the event of Political Force Majeure. To the extent that the event giving rise to the claim of Political Force Majeure has not subsided following such twelve (12) month period, Genco shall terminate this Agreement with no further liability or recourse to the other Parties, and shall have the obligation to (A) transfer the ownership interest in Genco to PETROBRAS in consideration of the payment by PETROBRAS of the Book Value within thirty (30) Days of the Termination Date, which amount shall be paid in accordance with this Article XVI or (B) transfer the Project Site, free and clear of any liens and encumbrances, including all fixtures (benfeitorias), but excluding the gas-fired turbines and auxiliaries to Buyerthe extent deemed fixtures (benfeitorias) thereto, to PETROBRAS . Buyer The equity owners of Genco on the Day prior to the date of transfer hereby agree to indemnify and Seller hold harmless PETROBRAS from any costs, expenses or liabilities not reflected in the balance sheet used for the calculation of the Book Value for events that occurred prior to the date of transfer of the ownership interest in Genco. PETROBRAS hereby agrees to indemnify and hold harmless the equity owners of Genco on the Day prior to the date of transfer from any costs, expenses or liabilities for events that occurred subsequent to the date of transfer of the ownership interest in Genco. On the Execution Date, Genco hereby represents and warrants that, it has not entered into any business outside the scope of the normal activities contemplated by its performance under this Agreement. Genco hereby agrees that it will not enter into any business outside the scope of the normal activities carried out by Genco in connection with the performance of this Agreement. PETROBRAS shall thereupon receive (a) an extension to the Term of this Agreement corresponding to the period of Political Force Majeure or Force Majeure in which PETROBRAS makes payments pursuant to this Section 16.02(e), (b) an amount equal to the Capacity Portion, and (c) the Commissioning Delay Charges. (f) Following the Start Date, notwithstanding the occurrence of an event of Political Force Majeure or Force Majeure, PETROBRAS shall contribute to the Consortium the Genco Allocation and any other contributions required hereunder for a period of time equal to the lesser of (i) twelve (12) consecutive months following the initiation of the event of Political Force Majeure or Force Majeure or (ii) the duration of the event of Political Force Majeure or Force Majeure. PETROBRAS shall receive an extension to the Term of this Agreement corresponding to the period of Political Force Majeure or Force Majeure in which PETROBRAS makes payments pursuant to this Section 16.02(f). To the extent that the event giving rise to the claim of Force Majeure or Political Force Majeure has not subsided following such twelve (12) month period, each Party shall have the rights and obligations set forth elsewhere in Section 16.02(h). (g) During the period of extension of this Agreement for an event of Force Majeure or Political Force Majeure, each of the Consortium and PETROBRAS shall be released from its obligation to contribute or distribute the Capacity Portion of the Genco Allocation and shall only be obligated to distribute the Energy Portion of the Genco Allocation and any other applicable charges. (h) Notwithstanding any provision herein to the contrary, any Party shall be entitled to terminate this Agreement pursuant to Sections 16.01(f), with no further liability or recourse to the other Parties, to the extent that such termination relates to an event of Force Majeure. (i) Notwithstanding any provisions herein to the contrary, upon the occurrence of an Early Termination Date in which PETROBRAS is the Defaulting Party, the Non-Defaulting Parties shall have the right to elect to maintain this Agreement in full force and effect and to terminate the membership of PETROBRAS in this Consortium. If such election is exercised, the following provisions shall apply: (i) PETROBRAS shall pay the Genco Termination Payment, forfeit its right to receive each of the PETROBRAS Market Allocation and the PETROBRAS Preferred Allocation, and otherwise forfeit all rights and benefits conferred on members of the Consortium. Upon the payment by PETROBRAS of the Genco Termination Payment, each of ECE and Genco hereby agrees that (A) all of the rights, title and interest in the Genco Termination Payment of Genco shall be assigned to ECE, and (B) the ECE Market Allocation shall be increased to include all Market Allocation available for distribution. Nothing herein shall be deemed to impair or otherwise limit the ability of ECE to terminate this Agreement following the substitution of PETROBRAS pursuant to this Section 16.02(i). If this Consortium is terminated by ECE, either concurrently with the substitution of PETROBRAS or at any time thereafter, then ECE shall make the Genco Termination Payment to Genco upon such termination; provided, however, ECE shall at all times comply with any requirements imposed by Lenders, including the depositing such amount in escrow if requested, regarding the payment of the Genco Termination Payment. (ii) Upon the payment by PETROBRAS of the Genco Termination Payment, except as otherwise set forth herein, PETROBRAS shall have the right to receive, on a monthly basis, the PETROBRAS Reimbursement Payment for the remaining Term of this Agreement, which shall be equal to the product of (A) 0.85, multiplied by (B) the greater of (x) the weighted average Capacity Portion for the three (3) Calculation Periods prior to the Event of Default, and (y) the Capacity Portion that would be owing on the Start Date assuming a deemed Start Date of August 01, 2001 (the "PETROBRAS Reimbursement Payment"). (iii) The PETROBRAS Reimbursement Payment shall be subject to the satisfaction of the conditions that (A) the fuel agreement between CEG and PETROBRAS or its Affiliate for the provision of Natural Gas shall not be terminated, and (B) CEG continues to purchase Natural Gas on an ongoing basis for delivery to the Merchant Project under such fuel supply arrangement. (iv) The Parties acknowledge that the PETROBRAS Reimbursement Payment represents a contingent distribution obligation of ECE. PETROBRAS shall be entitled to receive the amount, if any, by which the Gross Revenues exceed the sum of (A) Consortium Taxes, (B) Administrative Charges, (C) Taxes, (D) the Energy Portion, (E) any transmission or distribution charges, (F) any other payments or reimbursements contemplated herein including any fines, penalties or charges imposed by Governmental Authority that are reimbursable to Genco, and (G) any other charges or expenses reasonably incurred by the Consortium; provided, however, that in no event will such amount exceed the PETROBRAS Reimbursement Payment. If in any given Calculation Period the Net Revenues are insufficient to make any distribution to PETROBRAS, or if the amount distributed to PETROBRAS is less than the total PETROBRAS Reimbursement Payment, such amount distributed, if any, shall nonetheless be deemed to constitute payment in full of the PETROBRAS Reimbursement Payment for such Calculation Period. PETROBRAS shall have no right or claim for any amount deemed distributed, but never actually received. (v) ECE shall distribute and PETROBRAS shall have the right to receive the PETROBRAS Reimbursement Payment until such time as the aggregate amount of PETROBRAS Reimbursement Payments, either actually distributed or deemed to have been distributed pursuant to the previous paragraph, equal the Genco Termination Payment paid by PETROBRAS.

Termination Remedies. (a) If all conditions precedent Upon or after the occurrence of an Event of Default, the non-defaulting Party shall give written notice thereof to the obligations of Buyer set defaulting Party, setting forth in Article VII, or of Seller set forth in Article VIII, (such Party that has satisfied its conditions precedent, the “Performing Party”) have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because nature of the failure Event of Buyer or Seller Default. If the defaulting Party fails to perform any of its material obligations hereunder or the breach of any representation herein by Buyer or Seller demonstrate within thirty (such party that has not satisfied its conditions precedent, the “Breaching Party”30) and the Performing Party has performed all of its material obligations hereunder and has not breached any representation herein, then in such event, the Performing Party shall have the option to terminate this Agreement, in which case (i) if Buyer is the Breaching Party, 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, which remedy shall be the sole and exclusive remedy available to Seller for Buyer’s breaches or (ii) if Seller is the Breaching Party, then Seller shall return the Deposit to Buyer in immediately available funds within three (3) calendar days after receipt of Buyer’s the written notice of termination. Buyer and Seller acknowledge and agree default that it has cured the Event of Default, or if it is not possible to cure such Default within thirty (i30) days that it has undertaken diligent efforts to promptly cure such Default, then the Seller’s actual damages upon the event of such a termination are difficult non- defaulting Party may elect 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. Additionally, if Seller is the Breaching Partyterminate this Lease and, in lieu of terminating this Agreementaddition to such right, Buyer shall have may, subject to Section 7.3 hereof, seek monetary damages or any other remedy to which the right of specific performance of this Agreementnon-defaulting Party may be entitled at law or in equity. (b) If Within ninety (90) days of the date of expiration or termination of this Agreement is terminated for any reason, other than as set forth in Section 11.03(aLease (the "Termination Date"), then Seller Lessee shall, at Lessee's sole cost and expense, remove the Facility and all of Lessee's personal property from the Site. Any property not so removed may, at Lessor's sole option, be removed and stored by Lessor at Lessee's expense. As of the date of such removal, neither Party shall return have any claim against the Deposit to Buyer in immediately available funds within three (3) calendar days after the event giving rise other, except for claims or obligations that may have accrued prior to such payment termination or arise by reason of the removal or non removal of such Facility and other equipment or property, which claims or obligations shall survive termination hereof. Further, Lessee agrees, at its sole cost and expense, to Buyerrepair or refinish all damage caused by operation or removal of the Facility, excepting damage caused by ordinary wear and tear. Buyer If Lessee fails to repair or refinish any such damage, Lessor may, in its sole discretion, repair or refinish such damage and Seller Lessee shall thereupon have reimburse Lessor of all actual and verifiable costs and expenses incurred in such repair or refinishing; provided that prior to Lessor's repair or refinishing such damage, Lessor shall provide thirty (30) days notice to Lessee giving Lessee the rights and obligations set forth elsewhere hereinopportunity to repair or refinish the damage within such thirty-day period.

Termination Remedies. (a) If all conditions precedent Upon or after the occurrence of an Event of Default, the non-defaulting Party shall give written notice thereof to the obligations of Buyer set defaulting Party, setting forth in Article VII, or of Seller set forth in Article VIII, (such Party that has satisfied its conditions precedent, the “Performing Party”) have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because nature of the failure Event of Buyer or Seller Default. If the defaulting Party fails to perform any of its material obligations hereunder or the breach of any representation herein by Buyer or Seller demonstrate within thirty (such party that has not satisfied its conditions precedent, the “Breaching Party”30) and the Performing Party has performed all of its material obligations hereunder and has not breached any representation herein, then in such event, the Performing Party shall have the option to terminate this Agreement, in which case (i) if Buyer is the Breaching Party, 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, which remedy shall be the sole and exclusive remedy available to Seller for Buyer’s breaches or (ii) if Seller is the Breaching Party, then Seller shall return the Deposit to Buyer in immediately available funds within three (3) calendar days after receipt of Buyer’s the written notice of termination. Buyer and Seller acknowledge and agree default that it has cured the Event of Default, or if it is not possible to cure such Default within thirty (i30) days that it has undertaken diligent efforts to promptly cure such Default, then the Seller’s actual damages upon the event of such a termination are difficult non-defaulting Party may elect 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. Additionally, if Seller is the Breaching Partyterminate this Lease and, in lieu of terminating this Agreementaddition to such right, Buyer shall have may, subject to Section 7.3 hereof, seek monetary damages or any other remedy to which the right of specific performance of this Agreementnon-defaulting Party may be entitled at law or in equity. (b) If Within ninety (90) days of the date of expiration or termination of this Agreement is terminated for any reason, other than as set forth in Section 11.03(aLease (the "Termination Date"), then Seller Lessee shall, at Lessee's sole cost and expense, remove the Facility and all of Lessee's personal property from the Site. Any property not so removed may, at Lessor's sole option, be removed and stored by Lessor at Lessee's expense. As of the date of such removal, neither Party shall return have any claim against the Deposit to Buyer in immediately available funds within three (3) calendar days after the event giving rise other, except for claims or obligations that may have accrued prior to such payment termination or arise by reason of the removal or non removal of such Facility and other equipment or property, which claims or obligations shall survive termination hereof. Further, Lessee agrees, at its sole cost and expense, to Buyerrepair or refinish all damage caused by operation or removal of the Facility, excepting damage caused by ordinary wear and tear. Buyer If Lessee fails to repair or refinish any such damage, Lessor may, in its sole discretion, repair or refinish such damage and Seller Lessee shall thereupon have reimburse Lessor of all actual and verifiable costs and expenses incurred in such repair or refinishing; provided that prior to Lessor's repair or refinishing such damage, Lessor shall provide thirty (30) days notice to Lessee giving Lessee the rights and obligations set forth elsewhere hereinopportunity to repair or refinish the damage within such thirty-day period.

Termination Remedies. (a) If all conditions precedent 3.1. This Agreement shall terminate at the end of the PIMS Access Period, PROVIDED, HOWEVER, that APS shall use reasonable efforts to the obligations of Buyer set forth in Article VII, or of Seller set forth in Article VIII, (such Party that has satisfied its conditions precedent, the “Performing Party”) have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because extent practicable to provide BWP with timely written notice of the failure of Buyer date on which APS expects that it will cease operating PIMS, if and when a voluntary and final decision is made by APS to cease operating PIMS. 3.2. In the event that BWP fails to make any payment hereunder when due or Seller to perform any of its material obligations hereunder or the breach of any representation herein by Buyer or Seller (such party that has not satisfied its conditions precedent, the “Breaching Party”) and the Performing Party has performed all of its material obligations hereunder and has not breached any representation herein, then in such event, the Performing Party shall have the option to terminate this Agreement, in which case (i) if Buyer is the Breaching Party, Seller shall retain the Deposit as liquidated damages on account of Buyer’s failure otherwise fails to perform its obligations or breaches any of its covenants hereunder and such default is not cured within ten (10) days, (i) APS may terminate this Agreement upon ten (10) days' written notice to BWP; and (ii) all amounts owed by BWP to APS under this Agreement as of the date of such default shall become due and payable. BWP may terminate this Agreement on ten (10) days' written notice to APS. This Agreement is subject to termination or Buyer’s modification as may be necessary to comply with the provision of any decree or order of the Bankruptcy Court. 3.3. Upon termination of this Agreement as provided in SECTION 3.1 or 3.2, or by operation of law or otherwise, all fees owed to APS hereunder through the date of termination shall become due and payable and all other obligations granted hereunder shall terminate, except as provided in SECTIONS 3.4 and 4. 3.4. The sole remedy available to BWP in the event of a material failure of APS to provide PIMS access pursuant to this Agreement during the Access Period (other than by a willful breach of any representation under this Agreement, which remedy Agreement by APS) shall be the addressed to correcting said failure, rather than to penalizing APS. In recognition of this aim, BWP's sole and exclusive remedy available for such a failure shall be that APS shall use commercially reasonable efforts to Seller for Buyer’s breaches restore PIMS access to BWP within a commercially reasonable time. In the event that APS is unable to restore PIMS access, APS shall permit BWP to attempt to restore PIMS access and shall use reasonable commercial efforts not requiring additional expenditures (other than making a motion or motions to the Bankruptcy Court, if necessary, to assist BWP in restoring PIMS access, PROVIDED, THAT such PIMS access must be provided on a fair and equitable basis to all parties then having PIMS access rights. APS shall be excused from the corrective remedy set forth in this SECTION 3.4 if and to the extent that: (i) APS' failure to provide PIMS access pursuant to this Agreement is a direct or indirect result of BWP's breach of any covenant in this Agreement or failure to timely and accurately perform its responsibilities as set forth in this Agreement or (ii) if Seller is BWP fails to provide reasonable cooperation in completing performance and correcting the Breaching Partyproblems that led to the failure at issue. Notwithstanding the foregoing, then Seller shall return the Deposit to Buyer in immediately available funds within three (3) calendar days after receipt of Buyer’s notice of termination. Buyer and Seller acknowledge and agree that (i) the Seller’s actual damages upon the event of the willful failure of APS to provide BWP with PIMS access pursuant to this Agreement during the Access Period, APS shall be obligated to indemnify BWP for documented damages (including claims, liabilities, expenses, reasonable out-of-pocket costs and other legally recoverable damages) resulting from such a termination are difficult breach, PROVIDED, HOWEVER that APS shall not have any obligation to ascertain with any certaintyindemnify BWP for damages to the extent that such damages exceed $250,000 in the aggregate, (ii) and FURTHER PROVIDED that the Deposit is a reasonable estimate of BWP acknowledges that APS may cease operating PIMS and that such actual damages and (iii) such liquidated damages do event shall not constitute a penalty. Additionally, if Seller is the Breaching Party, in lieu of terminating "willful failure" under this Agreement, Buyer shall have the right of specific performance of this AgreementSECTION 3.4. (b) If this Agreement is terminated for any reason, other than as set forth in Section 11.03(a), then Seller shall return the Deposit to Buyer in immediately available funds within three (3) calendar 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.

Termination Remedies. (a) If all conditions precedent 3.1. This Agreement shall terminate at the end of the PIMS Access Period, PROVIDED, HOWEVER, that APS shall use reasonable efforts to the obligations of Buyer set forth in Article VII, or of Seller set forth in Article VIII, (such Party that has satisfied its conditions precedent, the “Performing Party”) have been met and the transactions contemplated by this Agreement are not consummated on or before the Closing Date because extent practicable to provide GPI with timely written notice of the failure of Buyer date on which APS expects that it will cease operating PIMS, if and when a voluntary and final decision is made by APS to cease operating PIMS. 3.2. In the event that GPI fails to make any payment hereunder when due or Seller to perform any of its material obligations hereunder or the breach of any representation herein by Buyer or Seller (such party that has not satisfied its conditions precedent, the “Breaching Party”) and the Performing Party has performed all of its material obligations hereunder and has not breached any representation herein, then in such event, the Performing Party shall have the option to terminate this Agreement, in which case (i) if Buyer is the Breaching Party, Seller shall retain the Deposit as liquidated damages on account of Buyer’s failure otherwise fails to perform its obligations or breaches any of its covenants hereunder and such default is not cured within ten (10) days, (i) APS may terminate this Agreement upon ten (10) days' written notice to GPI; and (ii) all amounts owed by GPI to APS under this Agreement as of the date of such default shall become due and payable. GPI may terminate this Agreement on ten (10) days' written notice to APS. This Agreement is subject to termination or Buyer’s modification as may be necessary to comply with the provision of any decree or order of the Bankruptcy Court. 3.3. Upon termination of this Agreement as provided in SECTION 3.1 or 3.2, or by operation of law or otherwise, all fees owed to APS hereunder through the date of termination shall become due and payable and all other obligations granted hereunder shall terminate, except as provided in SECTIONS 3.4 and 4. 3.4. The sole remedy available to GPI in the event of a material failure of APS to provide PIMS access pursuant to this Agreement during the Access Period (other than by a willful breach of any representation under this Agreement, which remedy Agreement by APS) shall be the addressed to correcting said failure, rather than to penalizing APS. In recognition of this aim, GPI's sole and exclusive remedy available for such a failure shall be that APS shall use commercially reasonable efforts to Seller for Buyer’s breaches restore PIMS access to GPI within a commercially reasonable time. In the event that APS is unable to restore PIMS access, APS shall permit GPI to attempt to restore PIMS access and shall use reasonable commercial efforts not requiring additional expenditures (other than making a motion or motions to the Bankruptcy Court, if necessary, to assist GPI in restoring PIMS access, PROVIDED, THAT such PIMS access must be provided on a fair and equitable basis to all parties then having PIMS access rights. APS shall be excused from the corrective remedy set forth in this SECTION 3.4 if and to the extent that: (i) APS' failure to provide PIMS access pursuant to this Agreement is a direct or indirect result of GPI's breach of any covenant in this Agreement or failure to timely and accurately perform its responsibilities as set forth in this Agreement or (ii) if Seller is GPI fails to provide reasonable cooperation in completing performance and correcting the Breaching Partyproblems that led to the failure at issue. Notwithstanding the foregoing, then Seller shall return the Deposit to Buyer in immediately available funds within three (3) calendar days after receipt of Buyer’s notice of termination. Buyer and Seller acknowledge and agree that (i) the Seller’s actual damages upon the event of the willful failure of APS to provide GPI with PIMS access pursuant to this Agreement during the Access Period, APS shall be obligated to indemnify GPI for documented damages (including claims, liabilities, expenses, reasonable out-of-pocket costs and other legally recoverable damages) resulting from such a termination are difficult breach, PROVIDED, HOWEVER that APS shall not have any obligation to ascertain with any certaintyindemnify GPI for damages to the extent that such damages exceed $250,000 in the aggregate, (ii) and FURTHER PROVIDED that the Deposit is a reasonable estimate of GPI acknowledges that APS may cease operating PIMS and that such actual damages and (iii) such liquidated damages do event shall not constitute a penalty. Additionally, if Seller is the Breaching Party, in lieu of terminating "willful failure" under this Agreement, Buyer shall have the right of specific performance of this AgreementSECTION 3.4. (b) If this Agreement is terminated for any reason, other than as set forth in Section 11.03(a), then Seller shall return the Deposit to Buyer in immediately available funds within three (3) calendar 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.

Termination Remedies. (a) If all conditions precedent a. Without prejudice to the obligations of Buyer set forth any remedies provided in Article VII, or of Seller set forth in Article VIII, (such Party that has satisfied its conditions precedentthese Terms, the “Performing Party”) have been met and the transactions contemplated Order or by this Agreement are not consummated on law or before the Closing Date because otherwise, upon Default, Buyer, in its sole discretion, may do any or all of the failure of Buyer or Seller to perform any of its material obligations hereunder or the breach of any representation herein by Buyer or Seller following: (such party that has not satisfied its conditions precedenti) immediately terminate these Terms, the “Breaching Party”) Order or any part thereof, and the Performing Party has performed all of its material obligations hereunder and has not breached any representation herein, then in such event, Vendor shall (at Buyer’s sole option and request) assign to Buyer any supply contracts, purchase orders and subcontracts relating to Goods; (ii) suspend payment until the Performing Party shall have Default has been remedied; and/or (iii) order all Goods under the option Order to terminate this Agreementbe stopped, in which case or suspend the Order, and/or enter upon the premises to take possession of incomplete Goods wholly or partly from Vendor or any other person or entity that possesses such Goods or any part thereof. Additionally, upon such Default, Buyer may take one or more of the following actions: (i) if purchase similar Goods elsewhere on such terms and in such manner as Buyer is the Breaching Party, 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, which remedy may deem appropriate and Vendor shall be the sole and exclusive remedy available liable to Seller Buyer for any excess costs occasioned by Buyer’s breaches or ; (ii) if Seller is purchase materials, supplies, equipment and labor necessary to complete Goods, and deduct the Breaching Partyamount paid from any amount due Vendor; (iii) require Vendor to: (a) grant (and in such event, then Seller shall return the Deposit Vendor hereby grants) to Buyer in immediately available funds a royalty-free, assignable and non-exclusive license to use and permit others to use, Vendor’s designs, processes, drawings, and technical data for completion of the Order; and (b) transfer title and deliver to Buyer any completed and partially completed Goods; and/or (iv) take any other action under applicable law, these Terms or the Order. If the damages and amount incurred by Buyer exceed the unpaid balance of the Order, Vendor shall pay Buyer such excess within three thirty (330) calendar days after receipt Buyer submits an invoice to Vendor. IN THE EVENT OF TERMINATION OR THE EXERCISE OF ANY REMEDIES UNDER THIS SECTION, BUYER SHALL BE LIABLE TO VENDOR FOR ONLY GOODS COMPLETED BY VENDOR AND ACCEPTED BY BUYER BUT NOT PAID FOR, AND BUYER SHALL HAVE NO OTHER OBLIGATION OR LIABILITY TO VENDOR. ALSO, VENDOR SHALL BE LIABLE TO BUYER FOR ANY AND ALL COSTS INCURRED BY BUYER ARISING FROM SUCH TERMINATION, AND FROM THE EXERCISE OF ANY AND ALL RIGHTS AND REMEDIES PROVIDED TO BUYER UNDER THE ORDER AND APPLICABLE LAW, INCLUDING THE RIGHT OF SETOFF. b. Buyer may, in its sole discretion, terminate these Terms or the Order or any part thereof, for its convenience upon written notice to Vendor. Thereafter, Vendor shall immediately (i) stop work related to Goods or stop delivery of Goods as specified in the termination notice, and (ii) cause any and all of its suppliers and subcontractors to cease such work. Upon and after such termination, Vendor may be entitled to be paid a percentage of the Order price reflecting only Goods (or portion thereof) completed by Vendor, and delivered and accepted by Buyer in Buyer’s sole discretion, but not yet paid for, prior to the notice of termination. Buyer and Seller acknowledge and agree that , plus reasonable out-of-pocket charges (iwithout duplication) the Seller’s actual damages upon the event incurred by Vendor to unaffiliated third parties as a direct result of such a termination that Vendor demonstrates to the sole satisfaction of Buyer. Vendor shall not be entitled to any Claim or lien against Buyer for additional compensation or damages. c. The rights and remedies of Buyer under this Section are difficult not exclusive, and apply in addition to ascertain with any certainty, (ii) that the Deposit is a reasonable estimate of such actual damages other rights and (iii) such liquidated damages do not constitute a penalty. Additionally, if Seller is the Breaching Partyremedies available at law, in lieu of terminating this Agreementcontract, Buyer shall have the right of specific performance of this Agreementin equity or otherwise. (b) If this Agreement is terminated for any reason, other than as set forth in Section 11.03(a), then Seller shall return the Deposit to Buyer in immediately available funds within three (3) calendar 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.

Termination Remedies. (a) If all conditions precedent to the 3.1. The obligations of Buyer set forth in Article VIIAPS to provide services pursuant to this Agreement shall terminate at the end of the Accounting Services Period. This Agreement is subject to termination or modification as may be necessary to comply with the provision of any decree or order of the Bankruptcy Court. Upon termination of this Agreement, pursuant to SECTIONS 3.1 or 3.2, or by operation of Seller set forth law or otherwise, all fees owed to APS hereunder through the date of termination shall become immediately due and payable and all other obligations granted hereunder shall terminate, except as provided in Article VIIISECTIONS 1.9, (such Party 3.3 and 4. 3.2. In the event that has satisfied its conditions precedent, the “Performing Party”) have been met and the transactions contemplated by this Agreement are not consummated on Auto Parts fails to make any payment when due or before the Closing Date because of the failure of Buyer or Seller otherwise fails to perform any of its material obligations hereunder or the breach of breaches any representation herein by Buyer or Seller (such party that has not satisfied its conditions precedent, the “Breaching Party”) and the Performing Party has performed all of its material obligations hereunder and has not breached any representation herein, then in such eventcovenants under this Agreement, the Performing Party shall have Asset Purchase Agreement or any of the option to Ancillary Agreements, and such default is not cured within five (5) business days of APS giving Auto Parts notice of such default, (i) APS may terminate this Agreement, in which case and (iii) if Buyer is the Breaching Party, Seller shall retain the Deposit as liquidated damages on account of Buyer’s failure all amounts owing by Auto Parts to perform its obligations APS under this Agreement or Buyer’s breach as of the date of such default, and all amounts owing by Auto Parts to APS under the Asset Purchase Agreement and under the Ancillary Agreements shall become immediately due and payable. In the event that Auto Parts fails to make any representation payment payable to APS under this Agreement, which remedy the Asset Purchase Agreement, any of the Ancillary Agreements, or any other agreement between APS and Auto Parts, in such amounts and at such times as provided for herein or therein (including any applicable cure periods), then any and all such amounts payable by Auto Parts to APS under this Agreement, the Asset Purchase Agreement, the Ancillary Agreements and any other agreement between APS and Auto Parts may, without prejudice to any other rights or remedies APS may have against Auto Parts, be drawn by APS from the Accounting Services Deposit (with appropriate invoices sent to Auto Parts pursuant to SECTION 2.2) and/or from any deposit under the Asset Purchase Agreement and the Ancillary Agreements, PROVIDED that with respect to amounts payable under this Agreement, such amounts shall first be drawn from the Accounting Services Deposit until the same is depleted, and then from any and all deposits under the Asset Purchase Agreement and the Ancillary Agreements. 3.3. The sole and exclusive remedy available to Seller Auto Parts in the event that APS does not satisfy any of its obligations under this Agreement (other than by a willful breach of this Agreement by APS), shall be addressed to correcting such failure of APS to satisfy such obligations, and not to penalizing APS. In recognition of this aim, Auto Parts' sole and exclusive remedy for Buyer’s breaches such a failure by APS to satisfy its obligations under this Agreement shall be that APS shall, if and to the extent feasible, use commercially reasonable efforts to satisfy such obligations within a commercially reasonable time, subject, in the sole discretion of APS, to the availability of APS employees, funding, business locations and equipment needed to allow APS to satisfy such obligations. APS shall be excused from the corrective remedy set forth in this SECTION 3.3 if and to the extent that: (i) APS' failure to satisfy its obligations pursuant to this Agreement is a direct or indirect result of Auto Parts' breach of any agreement in this Agreement or failure to timely and accurately perform its responsibilities as set forth in this Agreement; or (ii) if Seller is Auto Parts fails to provide reasonable cooperation in completing performance and correcting the Breaching Party, then Seller shall return problems that led to the Deposit to Buyer in immediately available funds within three (3) calendar days after receipt of Buyer’s notice of termination. Buyer and Seller acknowledge and agree that (i) the 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. Additionally, if Seller is the Breaching Party, in lieu of terminating this Agreement, Buyer shall have the right of specific performance of this Agreementfailure at issue. (b) If this Agreement is terminated for any reason, other than as set forth in Section 11.03(a), then Seller shall return the Deposit to Buyer in immediately available funds within three (3) calendar 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.