Seller’s Remedies If Purchaser fails to perform its obligations pursuant to this Contract at or prior to Closing for any reason except failure by Seller to perform hereunder, or if prior to Closing any one or more of Purchaser's representations or warranties are breached in any material respect, and this failure or breach is not cured within three (3) Business Days after written notice from Seller to Purchaser (other than failure to close for any reason unrelated to a default by Seller, for which there shall be no notice or cure period), then Seller, as its SOLE and EXCLUSIVE remedy (except as provided in Sections 6(c) and 9), may (i) terminate this Contract and receive the Xxxxxxx Money as liquidated damages and not as penalty, in full satisfaction of claims against Purchaser hereunder, or (ii) waive Purchaser’s failure or breach and proceed to Closing. Seller and Purchaser agree that Seller's damages resulting from Purchaser's default are difficult, if not impossible, to determine, and the Xxxxxxx Money is a fair estimate of those damages and has been agreed to in an effort to cause the amount of damages to be certain. Notwithstanding anything in this Section 11(a) to the contrary, in the event of Purchaser's default or termination of this Contract, Seller shall have all remedies available at law or in equity if Purchaser or any party related to or affiliated with Purchaser is asserting any claims or right to the Property that would otherwise delay or prevent Seller from having clear, indefeasible and marketable title to the Property other than as a result of Purchaser’s exercise of its remedies under subsection (b) hereof. If Closing is consummated, then Seller shall have all remedies available at law or in equity if Purchaser fails to perform any post-closing obligation of Purchaser under this Contract.
Buyer’s Remedies If SELLER fails to perform its obligations pursuant to this Agreement for any reason except failure by BUYER to perform hereunder, or if prior to Closing any one or more of SELLER’s representations or warranties are breached in any material respect, BUYER shall elect, as its sole remedy (except as provided in this Section and Section 9), either to (i) terminate this Agreement by giving SELLER timely written notice of such election prior to or at Closing and recover the Deposit, (ii) solely enforce specific performance, or (iii) waive said failure or breach and proceed to Closing. Notwithstanding anything herein to the contrary, BUYER shall be deemed to have elected to terminate this Agreement if BUYER fails to deliver to SELLER written notice of its intent to file a claim or assert a cause of action for specific performance against SELLER on or before ten (10) business days following the scheduled Closing Date, or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within two (2) months following the scheduled Closing Date. BUYER’s remedies shall be limited to those described in this Section hereof. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, MEMBERS, MANAGERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, MEMBER, MANAGER OR EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.
Purchaser’s Remedies 8.1 The Purchaser shall not be entitled to claim that any fact, matter or circumstance causes any of the Seller Warranties to be breached or renders any of the Seller Warranties misleading if it has been fairly disclosed in the Share Purchase Documents, the Disclosure Letter or the Audited Accounts in the absence of any fraud or dishonesty on the part of the Seller or its agents or advisers and only those matters so disclosed in the Share Purchase Documents, the Disclosure Letter or the Audited Accounts shall qualify the Seller Warranties.
8.2 No liability shall attach to the Seller in respect of claims under the Seller Warranties if and to the extent that the limitations referred to in sub-clause 8.1 apply, in the absence of any fraud or dishonesty on the part of the Seller or its agents or advisers.
8.3 The Seller’s liability for any claims under this Agreement shall be limited or excluded, as the case may be, as set out in Schedule 5 (Limitations on Seller’s Liability).
(A) If, between the execution of this Agreement and Completion, the Purchaser becomes aware (whether it does so by reason of any disclosure made under clause 7.3 (Seller Warranties) or not) that any of the Seller Warranties is or was inaccurate or misleading or that there has been any breach or breaches of any of the Seller Warranties or any other term of this Agreement, in each case having a Material Adverse Effect, the Purchaser may terminate this Agreement by notice in writing to the Seller.
(B) If this Agreement is terminated in accordance with sub-clause 8.4(A) (and without limiting the Purchaser’s right to claim damages):
(i) the Seller will indemnify the Purchaser on demand on an after-Tax basis for all reasonable costs and expenses incurred by the Purchaser in accordance with sub-clause 17.2 (Costs and expenses); and
(ii) all obligations of the Purchaser under this Agreement shall end (except for the provisions of clauses 15 (Announcements) and 16 (Confidentiality)), but (for the avoidance of doubt) all rights and liabilities of the parties which have accrued before termination for breach of this Agreement shall continue to exist.
(C) (For the avoidance of doubt but without limiting clause 10 (Remedies and waivers)), the Purchaser’s right to terminate this Agreement in accordance with sub-clause 8.4(A) is not exclusive of any rights, powers and remedies provided by law.
8.5 If, following Completion, the Purchaser becomes aware that there has been any breach of the Seller Warranties or any other term of this Agreement, the Purchaser shall not be entitled to terminate this Agreement but shall be entitled to claim damages or exercise any other right, power or remedy under this Agreement or as otherwise provided by law.
Seller’s Representations Seller represents and warrants to Buyer as follows:
Buyer’s Representations Buyer represents and warrants to, and covenants with, Seller as follows:
COVENANTS OF BUYER AND SELLER Buyer and Seller agree that:
SELLERS 20 The member states initially anticipate that they will provide a monetary allowance to sellers 21 under Model 2 based on the following:
Sellers’ Representative (a) Each of the Sellers hereby appoints Xxxx Xxxxx as Seller’s Representative hereunder for the purposes of representing his or its individual interests. Each of the Sellers hereby authorizes the Sellers’ Representative to act on his or its behalf with respect to all matters arising under this Agreement requiring or contemplating the possibility of some notice to be sent to or from, or some action to be taken by, the Sellers, including acting as the Sellers’ representative for the purpose of settling on behalf of the Sellers any claims made by Buyer under Section 12.1(a)(i), representing the Sellers in any indemnification proceedings under Section 12.3, approving any waivers or amendments in accordance with Section 13.6, but excluding the settling of any claims made by Buyer under Section 12.1(a)(ii) against a Seller. Except as aforesaid, each Seller hereby agrees to be bound by any and all notices sent and actions taken (and notices not sent and actions not taken) by the Sellers’ Representative on his or its behalf pursuant to this Agreement. If for any reason the Sellers’ Representative shall be unable to perform its duties hereunder as Sellers’ Representative, the holders of a majority in interest of the Interests owned immediately prior to the Initial Closing shall appoint a replacement Sellers’ Representative. Buyer shall be entitled to rely exclusively upon any communications or writings given or executed by the Sellers’ Representative and shall not be liable in any manner whatsoever for any action taken or not taken in reliance upon the actions taken or not taken or communications or writings given or executed by the Sellers’ Representative. Buyer shall be entitled to disregard any notices or communications given or made by any Seller, in his or its individual capacity, which is contrary to a notice or communication given or made by the Sellers’ Representative.
(b) In performing his duties under this Agreement, and in exercising or failing to exercise all or any of the powers conferred upon the Sellers’ Representative hereunder or thereunder, (i) the Sellers’ Representative shall not assume any, and shall incur no, responsibility whatsoever to any Seller by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, unless by the Sellers’ Representative’s gross negligence or willful misconduct, and (ii) the Sellers’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Sellers’ Representative pursuant to such advice shall in no event subject the Sellers’ Representative to liability to any Seller unless by the Sellers’ Representative’s gross negligence or willful misconduct. All of the immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the Initial Closing, any Subsequent Closing and/or any termination of this Agreement.
Buyer’s Closing Documents On the Closing Date, Buyer will execute and deliver to Seller the following (collectively, “Buyer’s Closing Documents”):
Buyer’s Deliveries at Closing At the Closing, Buyer shall deliver the following to the Seller:
