Common use of Buyer Remedies Clause in Contracts

Buyer Remedies. 4.5.1. If Buyer is notified or otherwise first becomes aware of a breach of any of the foregoing Seller representations and warranties prior to or at the Closing, Buyer’s sole right and remedy with respect to such breach shall be to terminate this Agreement within five (5) days after Buyer is so notified or otherwise first becomes aware of such breach. In the event of such termination, the Escrow Holder shall terminate the Escrow and return the Xxxxxxx Money Deposit to Buyer and, except as otherwise expressly provided in this Agreement, neither party shall thereafter have any further rights or obligations under this Agreement; Seller shall be responsible for payment to the Escrow Holder of the Escrow fees and charges related to termination, if any. Buyer shall have no right to seek damages for any breach of any Seller representations and warranties of which Buyer is notified or otherwise first becomes aware prior to or at the Closing. 4.5.2. If Buyer is notified or otherwise first becomes aware of a breach of any of the foregoing Seller representations and warranties during the relevant period of time after the Closing as specified in Section 4.1, Buyer’s sole rights and remedies with respect to such breach shall be to compel Seller to take such action at Seller’s expense as may be necessary to cure the breach, which right of Buyer (and the concomitant obligations of Seller discussed below) following any such breach of representation or warranty shall survive the consummation of this Agreement and to seek actual damages caused by Seller’s breach of representation or warranty under this Section 4.5.2; in no event will Buyer have any right to rescind the transaction contemplated herein on or after the Closing or to seek consequential damages. To the extent that Seller is required to take any action to cure a breach of any Seller representations and warranties pursuant to this Section 4.5.2, Seller shall commence such curative action within fifteen (15) days following receipt by Seller of notice from Buyer of the relevant breach and shall diligently pursue such curative action to completion.

Buyer Remedies. 4.5.1Upon the occurrence and during the continuance of an Event of Default, each Buyer, at its option (which option shall be deemed to have been exercised immediately upon the occurrence of an Event of Default pursuant to Section 7(d) or (e) hereof and shall be deemed to be an election to exercise the right described in clause (b) of this Section 8), shall have any or all of the following rights and remedies, which may be exercised by such Buyer: (a) Terminate and accelerate to a date designated by such Buyer, the Repurchase Date of each directly affected Transaction with such Buyer; or (b) Terminate and accelerate to a date designated by such Buyer the Repurchase Date of all Transactions with such Buyer hereunder. If a Buyer exercises or is notified or otherwise first becomes aware of a breach deemed to have exercised the option to accelerate the Repurchase Date of any of or all Transactions, (i) the foregoing Seller representations and warranties prior Sellers’ obligations in such Transactions to or repurchase all Purchased Assets, at the ClosingRepurchase Price therefor on such accelerated Repurchase Date, shall thereupon become immediately due and payable, (ii) all Income paid after such exercise or deemed exercise shall be retained by such Buyer and applied, in such Buyer’s sole right discretion, to the aggregate unpaid Repurchase Prices for all outstanding Transactions and remedy any other amounts owing by the Sellers hereunder, and (iii) the Sellers shall immediately deliver to Buyer the Asset Files relating to any Purchased Assets subject to such Transactions then in the Sellers’ possession or control. Each Buyer may, on or following the first Business Day following the date on which the Repurchase Price with respect to any Transaction became due and payable pursuant to this Section 8 above, (A) sell, on a servicing-released basis, without notice or demand of any kind, at a public or private sale and at such breach price or prices as such Buyer may reasonably deem satisfactory any or all Purchased Assets subject to such Transaction or (B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Assets, to give the related Seller credit for such Purchased Assets in an amount equal to the Market Value of such Purchased Assets (as determined by such Buyer) against the aggregate unpaid related Repurchase Price and any other amounts owing by such Seller hereunder, upon which application the Repurchase Price or any such other amounts shall be reduced by the amount as applied and such Buyer shall be released from any obligation to terminate sell, return or redeliver such Purchased Assets. If any Purchased Assets remain after all obligations to Buyers of the Sellers under this Agreement within five (5) days after Buyer is so notified have been satisfied, Buyers or otherwise first becomes aware their agent shall promptly return to the Sellers or their agent the balance of such breachPurchased Assets less any costs or expenses incurred by Buyers in enforcing their rights to the Purchased Assets under this Agreement. In Buyers may apply any proceeds from the event liquidation of such terminationthe Purchased Assets to the Repurchase Prices hereunder and all other obligations of the Sellers in the manner the Buyers deem appropriate in their sole discretion. Upon the occurrence and during the continuance of an Event of Default, the Escrow Holder each Buyer shall terminate the Escrow and return the Xxxxxxx Money Deposit to Buyer andhave, except as otherwise expressly provided in this Agreement, neither party the right to exercise any of its rights and/or remedies without presentment, demand, protest or further notice of any kind other than as expressly set forth herein, all of which are hereby expressly waived by each Seller. Each Seller hereby authorizes each Buyer to file such financing statement or statements relating to the Purchased Assets without such Seller’s signature thereon as such Buyer at its option may deem appropriate, and appoints such Buyer as such Seller’s attorney-in-fact to execute any such financing statement or statements in such Seller’s name and to perform all other acts which such Buyer deems appropriate to perfect and continue the lien and security interest granted hereby and, upon the occurrence and during the continuance of an Event of Default, to protect, preserve and realize upon the Purchased Assets, including, but not limited to, the right to endorse notes, complete blanks in documents and execute assignments on behalf of such Seller as its attorney-in-fact. This power of attorney is coupled with an interest and is irrevocable without such Buyer’s consent. Each Buyer may enforce its security interest in the Purchased Assets. Because each Seller recognizes that it may not be possible to purchase or sell all of the Purchased Assets on a particular Business Day, or in a transaction with the same purchaser, or in the same manner because the market for such Purchased Assets may not be liquid, each Seller agrees that liquidation of the Purchased Assets does not require a public purchase or sale and that a good faith private purchase or sale shall thereafter be deemed to have been made in a commercially reasonable manner. Accordingly, a Buyer may elect, in such Buyer’s sole discretion, the time and manner of liquidating any further Purchased Assets and nothing contained herein shall (A) obligate such Buyer to liquidate any Purchased Assets on the occurrence of an Event of Default or to liquidate all Purchased Assets in the same manner or on the same Business Day or (B) constitute a waiver of any of Buyer’s rights or remedies. However, in recognition of each Buyer’s agreement that the transactions hereunder have been entered into in consideration of and in reliance upon the fact that all Transactions hereunder constitute a single business and contractual relationship and that each Transaction has been entered into in consideration of the other Transactions, each Buyer agrees that it shall use its best efforts to liquidate all Purchased Assets hereunder upon the occurrence and during the continuance of an Event of Default as quickly as is prudently possible in such Buyer’s reasonable judgment. To the extent permitted by applicable law, the Sellers shall be liable to the Buyers for interest on any amounts owing by the Sellers hereunder, from the date the Sellers becomes liable for such amounts hereunder until such amounts are (i) paid in full by the Sellers or (ii) satisfied in full by the exercise of Buyers’ rights hereunder. Interest on any sum payable by the Sellers under this paragraph shall be at a rate equal to the Post-Default Rate. Each Buyer shall, without regard to the adequacy of the security for any Seller’s obligations under this Agreement, be entitled to the appointment of a receiver by any court having jurisdiction, without notice, to take possession of and protect, collect, manage, liquidate, and sell the Purchased Assets or any portion thereof; and collect the payments due with respect to the Purchased Assets or any portion thereof. The Sellers shall pay all costs and expenses incurred by each Buyer in connection with the appointment and activities of such receiver. Each Buyer may obtain an injunction or an order of specific performance to compel each Seller to fulfill its obligations, if such Seller fails or refuses to perform their obligations as set forth therein. Each Buyer shall have the right to direct all servicers then servicing any Purchased Assets to remit all collections thereon to such Buyer, and if any such payments are received by any Seller, the Sellers shall not commingle the amounts received with other funds of the Sellers and shall promptly pay them over to Buyers. Each Buyer shall also have the right to terminate any one or all of the servicers then servicing any Purchased Assets with or without cause. The Sellers shall be liable to Buyers for the amount of all expenses, including reasonable legal or other expenses incurred by Buyers in connection with or as a consequence of an Event of Default. Upon the occurrence and during the continuance of an Event of Default, each Buyer may, at its option and at the Sellers’ expense, using its reasonable business judgment, enter into one or more Xxxxxx covering all or a portion of the Purchased Assets, and the Sellers shall be responsible for payment all damages, judgments, costs and expenses of any kind which may be imposed on, incurred by or asserted against the Buyers relating to the Escrow Holder or arising out of the Escrow fees and charges related to terminationsuch Xxxxxx; including, if anywithout limitation, any losses resulting from such Xxxxxx. Each Buyer shall have no all the rights and remedies provided herein, provided by applicable federal, state, foreign, and local laws (including, without limitation, the rights and remedies of a secured party under the Uniform Commercial Code of the State of New York, to the extent that the Uniform Commercial Code is applicable, and the right to seek damages for offset any breach mutual debt and claim), in equity, and under any other agreement between Buyers and Sellers. Each Seller recognizes that a Buyer may be unable to effect a public sale of any or all of the Purchased Assets, by reason of certain prohibitions contained in the applicable federal securities laws and applicable state securities laws or otherwise, and may be compelled, in such Buyer’s opinion to resort to one or more private sales thereof to a restricted group of purchasers which will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. Each Seller representations acknowledges and warranties agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agree that any such private sale shall be deemed to have been made in a commercially reasonable manner. No Buyer shall be under any obligation to delay a sale of which Buyer is notified any of the Purchased Assets for the period of time necessary to permit any Seller to register such securities for public sale under the federal securities laws, or otherwise first becomes aware prior under applicable state securities laws, even if such Seller would agree to do so. Each Seller further agrees to use reasonable efforts to do or at cause to be done all such other acts as may be reasonably necessary to make any sale or sales of all or any portion of the Closing. 4.5.2Purchased Assets pursuant to this Agreement valid and binding and in compliance with any and all other applicable laws other than registration under applicable securities laws. If Buyer is notified or otherwise first becomes aware of Each Seller further agrees that a breach of any of the foregoing covenants contained in this Section 8 will cause irreparable injury to Buyers, that it has no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in this Section 8 shall be specifically enforceable against such Seller, and each Seller representations hereby waives and warranties during agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that no Event of Default has occurred under the relevant period Agreement. No failure on the part of any Buyer to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise by such Buyer of any right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All rights and remedies of any Buyer provided for herein are cumulative and in addition to any and all other rights and remedies provided by this Agreement and the other instruments and agreements contemplated hereby and thereby, and are not conditional or contingent on any attempt by such Buyer to exercise any of its rights under any other related document. Each Buyer may exercise at any time after the Closing occurrence and during the continuance of an Event of Default one or more remedies, as specified in Section 4.1it so desires, Buyer’s sole rights and may thereafter at any time and from time to time exercise any other remedy or remedies with respect to such breach shall be to compel Seller to take such action at Seller’s expense as may be necessary to cure the breach, which right of Buyer (and the concomitant obligations of Seller discussed below) following any such breach of representation or warranty shall survive the consummation of provided by this Agreement and to seek actual damages caused by Seller’s breach of representation or warranty under this Section 4.5.2; in no event will Buyer have any right to rescind the transaction other instruments and agreements contemplated herein on or after the Closing or to seek consequential damages. To the extent that Seller is required to take any action to cure a breach of any Seller representations hereby and warranties pursuant to this Section 4.5.2, Seller shall commence such curative action within fifteen (15) days following receipt by Seller of notice from Buyer of the relevant breach and shall diligently pursue such curative action to completionthereby.

Buyer Remedies. 4.5.1. If Buyer is notified or otherwise first becomes aware the transaction contemplated by this Agreement fails to close because Seller fails to perform any of the material covenants and agreements contained herein (other than a breach of any of the foregoing Seller Seller’s representations and warranties which shall be governed by Section 6.2) to be performed by Seller within the time for performance as specified herein (including Seller’s obligation to close, but excluding the failure by Seller to satisfy any Condition Precedent unless such failure to satisfy a Condition Precedent results from a default by Seller of its obligations hereunder or unless the satisfaction of such Condition Precedent is within Seller’s reasonable control), Buyer may as its sole and exclusive remedies, elect either to (i) terminate Buyer’s obligations under this Agreement by written notice to Seller, in which event the Deposit shall be returned immediately to Buyer; or (ii) file an action for specific performance no later than sixty (60) days after the originally scheduled Closing Date, failing which Buyer shall have conclusively waived its right to bring such action. Seller agrees that in the event Buyer elects (ii) above, Buyer shall not be required to post a bond or any other collateral with the court or any other party as a condition to Buyer’s pursuit of an action. The provisions of the immediately preceding sentence shall survive any termination of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, if prior to the Closing Buyer has or at obtains actual (as opposed to deemed, imputed or constructive) knowledge that Seller has defaulted on its obligations hereunder in any respect, and Buyer nevertheless proceeds with the Closing, Buyer’s sole right and remedy with respect then the default(s) by Seller as to which Buyer shall have such breach knowledge shall be deemed waived by Buyer and Seller shall have no liability to terminate Buyer or its successors and assigns in respect thereof. Nothing in this Agreement within five (5) days after Section 14.1 shall be deemed to in any way to limit or prevent Buyer is so notified or otherwise first becomes aware from exercising any right of such breachtermination provided to Buyer elsewhere in this Agreement. In the event of such termination, that the Escrow Holder shall terminate the Escrow and return the Xxxxxxx Money Deposit to Buyer and, except as otherwise expressly provided in this Agreement, neither party shall thereafter have any further rights or obligations under this Agreement; Seller shall be responsible for payment to the Escrow Holder of the Escrow fees and charges related to termination, if any. Buyer shall have no right to seek damages for any breach of any Seller representations and warranties of which Buyer is notified or otherwise first becomes aware prior to or at the Closing. 4.5.2. If Buyer is notified or otherwise first becomes aware of a breach of any of the foregoing Seller representations and warranties during the relevant period of time after the Closing as specified in Section 4.1, Buyer’s sole rights and remedies with respect to such breach shall be to compel Seller to take such action at Seller’s expense as may be necessary to cure the breach, which right of Buyer (and the concomitant obligations of Seller discussed below) following any such breach of representation or warranty shall survive the consummation of terminates this Agreement and to seek actual damages caused by Seller’s breach of representation or warranty under this Section 4.5.2; in no event will Buyer have any right to rescind the transaction contemplated herein on or after the Closing or to seek consequential damages. To the extent that Seller is required to take any action to cure a breach of any Seller representations and warranties pursuant to this Section 4.5.214.1.1, the Seller shall commence such curative action within fifteen pay to the Buyer an amount equal to the documented, actual and 13106722_20.doc 31 reasonable out-of-pocket expenses incurred by Buyer in connection with the transaction contemplated by this Agreement up to a maximum of One Million Dollars (15) days following receipt by Seller of notice from Buyer of the relevant breach and shall diligently pursue such curative action to completion$1,000,000.00).