Common use of By Sellers Clause in Contracts

By Sellers. IF, PRIOR TO THE CLOSING, IF ANY SELLER IS IN DEFAULT WITH RESPECT TO, OR BREACHES, OR FAILS TO PERFORM ONE OR MORE OF THE REPRESENTATIONS, COVENANTS, WARRANTIES OR OTHER TERMS OF THIS AGREEMENT, AND SUCH DEFAULT, BREACH OR FAILURE IS NOT CURED OR REMEDIED WITHIN FIVE (5) BUSINESS DAYS AFTER RECEIPT OF WRITTEN NOTICE THEREOF GIVEN BY BUYER TO SELLERS, BUYER MAY EITHER (A) TERMINATE THIS AGREEMENT, IN WHICH EVENT THE DEPOSIT AND ALL INTEREST EARNED THEREON SHALL BE RETURNED BY THE TITLE COMPANY TO BUYER AND THE PARTIES SHALL BE RELEASED FROM ALL FURTHER OBLIGATIONS AND LIABILITIES UNDER THIS AGREEMENT, EXCEPT WITH RESPECT TO THE SURVIVING OBLIGATIONS, OR (B) COMMENCE WITHIN SIXTY (60) DAYS AFTER THE DATE THE CLOSING WAS TO HAVE OCCURRED AND DILIGENTLY PROSECUTE AN ACTION IN THE NATURE OF SPECIFIC PERFORMANCE. IF AN ACTION IN THE NATURE OF SPECIFIC PERFORMANCE IS NOT AN AVAILABLE REMEDY OR IF BUYER ELECTS TO COMMENCE SUCH ACTION AND IS UNSUCCESSFUL, THEN THE DEPOSIT (INCLUDING ALL INTEREST AND INCOME) WILL BE RETURNED TO BUYER AND THE PARTIES RELEASED FROM THEIR OBLIGATIONS UNDER THIS AGREEMENT (EXCEPT THOSE THAT EXPRESSLY SURVIVE TERMINATION OF THIS AGREEMENT). THE REMEDIES SET FORTH ABOVE SHALL BE BUYER’S SOLE REMEDIES ARISING FROM A DEFAULT, BREACH OR FAILURE TO PERFORM BY SELLERS.

By Sellers. IF, PRIOR SUBJECT TO THE CLOSINGTERMS AND CONDITIONS OF THIS ARTICLE 8,EACH SELLER HEREBY AGREES, IF SEVERALLY AND NOT JOINTLY, TO INDEMNIFY, DEFEND AND HOLD HARMLESS BUYER AND ITS AFFILIATES AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS AND EMPLOYEES (COLLECTIVELY, THE "BUYER PARTIES"), FROM AND AGAINST THE FOLLOWING (COLLECTIVELY, THE "BUYER INDEMNIFIED LIABILITIES"): ANY SELLER IS CLAIM INDIVIDUALLY CONSTITUTING A LOSS IN DEFAULT WITH RESPECT TOEXCESS OF $10,000 ASSERTED AGAINST, IMPOSED UPON, OR BREACHESINCURRED BY ANY BUYER PARTY, DIRECTLY OR INDIRECTLY, BY REASON OF, ARISING OUT OF, OR FAILS TO PERFORM ONE RESULTING FROM (A) THE INACCURACY OR MORE BREACH OF THE REPRESENTATIONS, COVENANTS, WARRANTIES ANY REPRESENTATION OR OTHER TERMS WARRANTY MADE BY SUCH SELLER IN ARTICLE 3 OF THIS AGREEMENT, AND SUCH DEFAULT, BREACH OR FAILURE IS NOT CURED OR REMEDIED WITHIN FIVE (5) BUSINESS DAYS AFTER RECEIPT OF WRITTEN NOTICE THEREOF GIVEN BY BUYER TO SELLERS, BUYER MAY EITHER (A) TERMINATE THIS AGREEMENT, IN WHICH EVENT THE DEPOSIT AND ALL INTEREST EARNED THEREON SHALL BE RETURNED BY THE TITLE COMPANY TO BUYER AND THE PARTIES SHALL BE RELEASED FROM ALL FURTHER OBLIGATIONS AND LIABILITIES UNDER THIS AGREEMENT, EXCEPT WITH RESPECT TO THE SURVIVING OBLIGATIONS, ; OR (B) COMMENCE WITHIN SIXTY THE BREACH OF ANY COVENANT OR AGREEMENT OF SUCH SELLER CONTAINED IN THIS AGREEMENT; OR (60C) DAYS AFTER THE DATE OPERATION AND OWNERSHIP OF THE CLOSING WAS ASSETS PRIOR TO HAVE OCCURRED AND DILIGENTLY PROSECUTE AN ACTION THE EFFECTIVE DATE, OTHER THAN LITIGATION MATTERS DISCLOSED IN THE NATURE DISCLOSURE SCHEDULE; OR (D) ANY TAXES RELATED TO THE ASSETS FOR PRE-CLOSING PERIODS; PROVIDED, NONE OF SPECIFIC PERFORMANCE. IF AN ACTION IN THE NATURE BUYER PARTIES SHALL BE ENTITLED TO ASSERT RIGHTS OF SPECIFIC PERFORMANCE IS NOT AN AVAILABLE REMEDY INDEMNIFICATION BY SELLERS UNDER THIS ARTICLE 8 FOR BUYER INDEMNIFIED LIABILITIES PURSUANT TO CLAUSES (A) OR IF (B) UNLESS AND UNTIL THE AGGREGATE OF ALL SUCH BUYER ELECTS INDEMNIFIED LIABILITIES EXCEEDS $100,000 (IT BEING UNDERSTOOD THAT SUCH BUYER INDEMNIFIED LIABILITIES SHALL ACCUMULATE UNTIL SUCH TIME OR TIMES AS THE AGGREGATE OF ALL SUCH BUYER INDEMNIFIED LIABILITIES EXCEEDS $100,000, WHEREUPON THE BUYER PARTIES SHALL BE ENTITLED TO COMMENCE INDEMNIFICATION BY SELLERS HEREUNDER TO THE EXTENT OF SUCH ACTION AND IS UNSUCCESSFULEXCESS); PROVIDED, THEN THE DEPOSIT (INCLUDING ALL INTEREST AND INCOME) WILL BE RETURNED TO BUYER AND THE PARTIES RELEASED FROM THEIR FURTHER, THAT SELLERS' MAXIMUM INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT CLAUSES (EXCEPT THOSE THAT EXPRESSLY SURVIVE TERMINATION A), (B) AND (C) OF THIS AGREEMENT). THE REMEDIES SET FORTH ABOVE SECTION 8.1 SHALL BE BUYER’S SOLE REMEDIES CAPPED AT AN AGGREGATE AMOUNT EQUAL TO TWENTY-FIVE PERCENT (25%) OF THE PURCHASE PRICE (THE "CAP"), PROVIDED THAT THE CAP FOR A SELLER SHALL BE INCREASED TO ITS PRO-RATA SHARE OF THE PURCHASE PRICE WITH RESPECT TO ANY OBLIGATIONS DIRECTLY ARISING FROM THE KNOWING AND INTENTIONAL BREACH BY THAT SELLER OF A DEFAULT, BREACH REPRESENTATION OR FAILURE TO PERFORM BY SELLERSWARRANTY.

By Sellers. IFSUBJECT TO THE TERMS AND CONDITIONS OF THIS ARTICLE 8, EACH SELLER, SEVERALLY BUT NOT JOINTLY, HEREBY AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS BUYER, THE COMPANIES, AND THEIR RESPECTIVE AFFILIATES AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS AND EMPLOYEES (COLLECTIVELY, THE "BUYER PARTIES"), FROM AND AGAINST THE FOLLOWING (COLLECTIVELY, THE "BUYER INDEMNIFIED LIABILITIES"): ANY CLAIM INDIVIDUALLY CONSTITUTING A LOSS IN EXCESS OF $10,000 ASSERTED AGAINST, IMPOSED UPON, OR INCURRED BY ANY BUYER PARTY, DIRECTLY OR INDIRECTLY, BY REASON OF, ARISING OUT OF, OR RESULTING FROM (A) THE INACCURACY OR BREACH OF ANY REPRESENTATION OR WARRANTY MADE BY SUCH SELLER IN ARTICLE 3 OF THIS AGREEMENT; OR (B) THE BREACH OF ANY COVENANT OR AGREEMENT OF SUCH SELLER CONTAINED IN THIS AGREEMENT; OR (C) THE OPERATIONS OF OR OWNERSHIP OF THE ASSETS BY THE SUBSIDIARY COMPANY OF THAT SELLER PRIOR TO THE CLOSING, IF ANY SELLER IS IN DEFAULT WITH RESPECT TOEFFECTIVE TIME (INCLUDING EMPLOYEE OR ERISA RELATED CLAIMS), OR BREACHESTHE OWNERSHIP OF THE RESPECTIVE SUBSIDIARY COMPANY BY THE SELLER, OTHER THAN ANY LITIGATION MATTERS DISCLOSED IN THE DISCLOSURE SCHEDULE; OR (D) ANY TAXES OF THE SUBSIDIARY COMPANY OF THAT SELLER RELATING TO PRE-CLOSING PERIODS, INCLUDING TAXES ARISING FROM ANY DISTRIBUTIONS FROM THE SUBSIDIARY COMPANY TO THE SELLER, THE SECTION 338(H)(10) ELECTION, OR FAILS TO PERFORM ONE OR MORE THE LIABILITY OF ANY OTHER PERSON IMPOSED ON THE REPRESENTATIONS, COVENANTS, WARRANTIES OR OTHER TERMS OF THIS AGREEMENT, AND SUCH DEFAULT, BREACH OR FAILURE IS NOT CURED OR REMEDIED WITHIN FIVE (5) BUSINESS DAYS AFTER RECEIPT OF WRITTEN NOTICE THEREOF GIVEN BY BUYER TO SELLERS, BUYER MAY EITHER (A) TERMINATE THIS AGREEMENT, IN WHICH EVENT THE DEPOSIT AND ALL INTEREST EARNED THEREON SHALL BE RETURNED BY THE TITLE SUBSIDIARY COMPANY TO BUYER AND THE PARTIES SHALL BE RELEASED FROM ALL FURTHER OBLIGATIONS AND LIABILITIES UNDER THIS AGREEMENT, EXCEPT TREASURY REGULATION SECTION 1.1502-6 WITH RESPECT TO THE SURVIVING OBLIGATIONSCONSOLIDATED GROUP OF THE SELLER, OR (E) ANY FINE OR PENALTY IMPOSED BY FERC RELATING TO BMEC'S FAILURE TO SECURE FERC APPROVAL PRIOR TO TRANSFERRING OWNERSHIP IN THE ASSETS TO WBI OFFSHORE AND MCNIC OFFSHORE; PROVIDED, NONE OF THE BUYER PARTIES SHALL BE ENTITLED TO ASSERT RIGHTS OF INDEMNIFICATION BY SELLERS UNDER THIS ARTICLE 8 FOR BUYER INDEMNIFIED LIABILITIES PURSUANT TO CLAUSES (A) OR (B) COMMENCE WITHIN SIXTY UNLESS AND UNTIL THE AGGREGATE OF ALL SUCH BUYER INDEMNIFIED LIABILITIES EXCEEDS $100,000 (60) DAYS AFTER IT BEING UNDERSTOOD THAT SUCH BUYER INDEMNIFIED LIABILITIES SHALL ACCUMULATE UNTIL SUCH TIME OR TIMES AS THE DATE AGGREGATE OF ALL SUCH BUYER INDEMNIFIED LIABILITIES EXCEEDS $100,000, WHEREUPON THE CLOSING WAS BUYER PARTIES SHALL BE ENTITLED TO HAVE OCCURRED AND DILIGENTLY PROSECUTE AN ACTION IN INDEMNIFICATION BY SELLERS HEREUNDER TO THE NATURE EXTENT OF SPECIFIC PERFORMANCE. IF AN ACTION IN THE NATURE OF SPECIFIC PERFORMANCE IS NOT AN AVAILABLE REMEDY OR IF BUYER ELECTS TO COMMENCE SUCH ACTION AND IS UNSUCCESSFULEXCESS); PROVIDED, THEN THE DEPOSIT (INCLUDING ALL INTEREST AND INCOME) WILL BE RETURNED TO BUYER AND THE PARTIES RELEASED FROM THEIR FURTHER, THAT SELLERS' MAXIMUM INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT CLAUSES (EXCEPT THOSE THAT EXPRESSLY SURVIVE TERMINATION A), (B) AND (C) OF THIS AGREEMENT). THE REMEDIES SET FORTH ABOVE SECTION 8.1 ("OBLIGATIONS") SHALL BE BUYER’S SOLE REMEDIES CAPPED AT AN AGGREGATE AMOUNT EQUAL TO 25% OF PURCHASE PRICE (THE "CAP"), PROVIDED THAT THE CAP FOR EACH SELLER SHALL BE INCREASED TO ITS PRO-RATA SHARE OF THE PURCHASE PRICE WITH RESPECT TO ANY OBLIGATIONS DIRECTLY ARISING FROM THE KNOWING AND INTENTIONAL BREACH BY THAT SELLER OF A DEFAULTREPRESENTATION OR WARRANTY. EACH SELLER SHALL BE RESPONSIBLE FOR THE BREACH OF ANY JOINT REPRESENTATION, BREACH WARRANTY, OR FAILURE COVENANT ONLY TO PERFORM BY SELLERSTHE EXTENT OF ITS PRO-RATA SHARE OF THE SAME.