Common use of Default Remedies of Buyer Clause in Contracts

Default Remedies of Buyer. (a) If a Seller Default exists on or before the Closing Date, Buyer’s sole rights with respect to such Seller Default shall be to (1) waive such condition in writing (in which case this Agreement shall continue in full force and effect and Buyer shall have no further rights or remedies in connection with the facts or circumstances which caused such Seller Default), (2) terminate this Agreement and receive a refund of the Deposit and receive from Sellers reimbursement for Buyer’s actual and reasonable out-of-pocket expenses payable to third parties that were incurred in connection with the transactions contemplated by this Agreement (including, without limitation, the costs of negotiating this Agreement) provided that Sellers’ obligation to reimburse Buyer for such expenses shall not exceed Two Million Five Hundred Thousand and NO/100 Dollars ($2,500,000.00), or (3) pursue an action for specific performance, but only if Buyer properly files with a court of competent jurisdiction a complaint for specific performance within 30 days after the scheduled Closing Date. (b) If Buyer wishes to pursue options (2) or (3) in Section 16.1(a), it shall provide Notice to Sellers of the Seller Default and Sellers shall have ten (10) Business Days to cure such Seller Default (and if such cure period will not expire prior to the date established as the Closing Date, the Closing Date shall automatically be extended to the Business Day immediately following the day on which the cure period expires). Notwithstanding the foregoing, Sellers shall not be entitled to any notice or cure period with respect to a Seller Default arising from a breach of Sellers’ obligations under Section 5.2 or if Sellers otherwise fail to timely consummate the transactions contemplated hereby when obligated to do so. If Sellers fail to cure such Seller Default within such applicable period, then Buyer shall have the rights set forth in Section 16.1(a). (c) If Buyer cancels the Escrow under this Section 16.1, all costs of the Escrow shall be paid by Sellers.

Default Remedies of Buyer. Seller shall be in default hereunder upon the occurrence of any one or more of the following events: (ai) If any of Seller’s warranties or representations set forth herein are untrue or inaccurate in any material respect and Seller fails to cure the condition rendering such warranty or representation untrue or inaccurate within ten (10) calendar days after notice from Buyer of such untruth or inaccuracy or Seller’s knowledge that a warranty or representation is untrue or inaccurate (Seller Default exists shall provide immediate notice to Buyer); or (ii) Seller shall fail to meet, comply with or perform any covenant, agreement, or obligation on or before its part required, within the Closing Datetime limits and in the manner required in this Agreement or, if no such time limits are set forth, within ten (10) calendar days after notice from Buyer of such failure and after expiration of ten (10) calendar days allowing Seller to cure, for any reason: In the event of a default by Seller under this Section and Seller’s failure to cure the same as set forth herein, Buyer may, at Buyer’s sole rights with respect to such Seller Default shall be to option, do any of the following: (1) waive such condition in writing (in which case this Agreement shall continue in full force and effect and Buyer shall have no further rights or remedies in connection with the facts or circumstances which caused such Seller Default), (2i) terminate this Agreement by written notice delivered to Seller and receive a refund Escrow Holder at or prior to the Closing, in which event the Xxxxxxx Money shall be returned to Buyer, and thereafter neither Seller nor Buyer shall have any obligations to the other under this Agreement, except as specifically set forth herein; or (ii) enforce specific performance of the Deposit and receive from Sellers reimbursement for Buyer’s actual and reasonable out-of-pocket expenses payable to third parties that were incurred in connection with the transactions contemplated by this Agreement against Seller, provided that any action for specific performance must be brought no later than thirty (30) calendar days after the last scheduled Closing Date; or (iii) waive any such obligation, representation, or warranty and close the transaction without any reduction in the Purchase Price. In no event shall Buyer be entitled to seek or obtain any other damages of any kind, including, without limitation, the costs of negotiating this Agreement) provided that Sellers’ obligation to reimburse Buyer for such expenses shall not exceed Two Million Five Hundred Thousand and NO/100 Dollars ($2,500,000.00)consequential, indirect or (3) pursue an action for specific performance, but only if Buyer properly files with a court of competent jurisdiction a complaint for specific performance within 30 days after the scheduled Closing Datepunitive damages. (b) If Buyer wishes to pursue options (2) or (3) in Section 16.1(a), it shall provide Notice to Sellers of the Seller Default and Sellers shall have ten (10) Business Days to cure such Seller Default (and if such cure period will not expire prior to the date established as the Closing Date, the Closing Date shall automatically be extended to the Business Day immediately following the day on which the cure period expires). Notwithstanding the foregoing, Sellers shall not be entitled to any notice or cure period with respect to a Seller Default arising from a breach of Sellers’ obligations under Section 5.2 or if Sellers otherwise fail to timely consummate the transactions contemplated hereby when obligated to do so. If Sellers fail to cure such Seller Default within such applicable period, then Buyer shall have the rights set forth in Section 16.1(a). (c) If Buyer cancels the Escrow under this Section 16.1, all costs of the Escrow shall be paid by Sellers.

Default Remedies of Buyer. (a) If a Seller Default exists on or before the Closing Date, Buyer’s sole rights with respect to such Seller Default failure shall be to (1) waive such condition in writing (in which case this Agreement shall continue in full force and effect and Buyer shall have no further rights or remedies in connection with the facts or circumstances which caused such Seller Default), (2) terminate this Agreement and receive a refund of the Deposit and receive from Sellers reimbursement for Buyer’s actual and reasonable out-of-pocket expenses payable to third parties that were incurred in connection with the transactions contemplated by this Agreement (including, without limitation, the costs of negotiating this Agreement) provided that Sellers’ obligation to reimburse Buyer for such expenses shall not exceed Two Million Five Hundred Thousand and NO/100 Dollars ($2,500,000.00), or (3) pursue an action for specific performance, but only if Buyer properly files with a court of competent jurisdiction a complaint for specific performance within 30 45 days after the scheduled Closing Date, or (3) provided that the notice and cure procedures described in Section 17.1(b) as to a Seller Default have been followed, cancel the Escrow by written notice to Sellers and, subject to the limitations set forth in Section 17.1(f), pursue an action for damages against Sellers. Upon cancellation of the Escrow pursuant to this Section 17.1(a), the Deposit shall be returned to Buyer and, except for (i) the right in the foregoing sentence to pursue an action for damages and (ii) liability with respect to the Buyer Surviving Obligations and the Seller Surviving Obligations, the parties shall have no further rights or obligations under this Agreement. (b) If Buyer wishes to pursue options (2) or (3) in Section 16.1(a), it shall provide Notice written notice to Sellers of any fact, circumstance or condition that would give it the Seller Default and right to cancel the Escrow under this Section 17.1. Sellers shall have ten (10) Business Days to cure any such Seller Default default (and if such cure period will not expire prior to the date established as the Closing Date, the Closing Date shall automatically be extended to the Business Day immediately following the day on which the cure period expires). Notwithstanding the foregoing, Sellers shall not be entitled to any notice or cure period with respect to a Seller Default arising from a breach of Sellers’ obligations under Section 5.2 or if Sellers otherwise fail to timely consummate the transactions contemplated hereby when obligated to do so. If Sellers fail are unable to cure cause such Seller Default condition to be satisfied within such applicable ten (10) Business Day period, then Buyer shall have the rights set forth in Section 16.1(a17.1(a). (c) If, as of the Closing Date, the condition precedent to Buyer’s obligations described in Section 15.1(a) or 15.1(c) is not satisfied, Buyer’s sole rights with respect to such failure of condition shall be to (1) waive such condition in writing (in which case this Agreement shall continue in full force and effect and Buyer shall have no further rights or remedies in connection with the facts or circumstances which caused such condition to be unsatisfied) or (2) cancel the Escrow by written notice to Sellers and, subject to the limitations set forth in Section 17.1(f), pursue an action for damages against Sellers. Upon cancellation of Escrow pursuant to this Section 17.1(c), the Deposit shall be returned to Buyer and except for (i) the right in the foregoing sentence to pursue an action for damages and (ii) liability with respect to the Buyer Surviving Obligations and the Seller Surviving Obligations, the parties shall have no further rights or obligations under this Agreement. (d) If, as of the Closing Date, a Property Default exists with respect to one or more Golf Course Properties, including a Property Default that relates to a breach of the Sellers’ representations and warranties in Section 10.1(d) through (k) or 10.1(m) through (bb) with respect to any Golf Course Properties, Buyer shall have the right to (1) waive such condition in writing (in which case this Agreement shall continue in full force and effect and Buyer shall have no further rights or remedies in connection with the facts or circumstances which caused such Seller Default), (2) pursue an action for specific performance, but only if Buyer properly files, with a court of competent jurisdiction, a complaint for specific performance within forty-five (45) days after the scheduled Closing Date, or (3) declare the affected Golf Course Property to be a Released Property and, if such Property Default is due to the willful breach by a Seller of its covenants hereunder, to pursue an action for damages against Seller subject to the limitations set forth in Section 17.1(f). Buyer shall not have the right to cancel the Escrow because of a Property Default that affects one or more Golf Course Properties but not all or substantially all of the Property. (e) EAGL acknowledges and agrees that it shall have no rights if the Closing fails to occur for any reason, all of EAGL’s rights hereunder in respect of the Property being conditioned upon the occurrence of the Closing (following which EAGL shall have those rights and obligations of Buyer that are specifically assigned to it pursuant to this Agreement). (f) Buyer agrees that the combined liability of the Sellers and the Operator for damages under Section 17.1(a), 17.1(c) and 17.1(d), regardless of the amount of any judgment or decision, shall be limited to the sum of (a) Buyer’s reasonable documented costs incurred in connection with the negotiation of this Agreement and Buyer’s due diligence activities relating to the Golf Course Properties and the transactions contemplated herein including, reasonable attorneys fees of Buyer and EAGL and third-party costs and expenses, not to exceed Million and No/100 Dollars ($3,000,000) in the aggregate and (b) Three Million and No/100 Dollars ($3,000,000.00) in additional damages. (g) If Buyer cancels the Escrow under due to a Seller Default of the kind that permits a cancellation of the Escrow pursuant to this Section 16.117.1, then all costs of the Escrow shall be paid by SellersSeller.

Default Remedies of Buyer. (a) If a Seller Default exists on or before the Closing Date, Buyer’s sole rights with respect to such Seller Default failure shall be to (1) waive such condition in writing (in which case this Agreement shall continue in full force and effect and Buyer shall have no further rights or remedies in connection with the facts or circumstances which caused such Seller Default), (2) terminate this Agreement and receive a refund of the Deposit and receive from Sellers reimbursement for Buyer’s actual and reasonable out-of-pocket expenses payable to third parties that were incurred in connection with the transactions contemplated by this Agreement (including, without limitation, the costs of negotiating this Agreement) provided that Sellers’ obligation to reimburse Buyer for such expenses shall not exceed Two Million Five Hundred Thousand and NO/100 Dollars ($2,500,000.00), or (3) pursue an action for specific performance, but only if Buyer properly files with a court of competent jurisdiction a complaint for specific performance within 30 days after the scheduled Closing Date, or (3) terminate this Agreement and cancel the Escrow by written notice to Sellers and the Escrow Agent. Upon termination of this Agreement and cancellation of the Escrow pursuant to this Section 17.1(a), the Deposit shall be immediately returned to Buyer without any further action by either Seller or Buyer and without any additional documentation, including notices, releases or waivers from any Person and, except for liability with respect to the Buyer Surviving Obligations and the Seller Surviving Obligations, the parties shall have no further rights or obligations under this Agreement. (b) If Buyer wishes to pursue options (2) or (3) in Section 16.1(a), it shall provide Notice written notice to Sellers of any fact, circumstance or condition that would give it the Seller Default and right to cancel the Escrow under this Section 17.1. Sellers shall have ten (10) Business Days to cure any such Seller Default default (and if such cure period will not expire prior to the date established as the Closing Date, the Closing Date shall automatically be extended to the Business Day immediately following the day on which the cure period expires). Notwithstanding the foregoing, Sellers shall not be entitled to any notice or cure period with respect to a Seller Default arising from a breach of Sellers’ obligations under Section 5.2 or if Sellers otherwise fail to timely consummate the transactions contemplated hereby when obligated to do so. If Sellers fail are unable to cure cause such Seller Default condition to be satisfied within such applicable ten (10) Business Day period, then Buyer shall have the rights set forth in Section 16.1(a17.1(a). (c) If, as of the Closing Date, any of Buyer’s Conditions Precedent are not satisfied, Buyer’s sole rights with respect to such failure of condition shall be to (1) waive such condition in writing (in which case this Agreement shall continue in full force and effect and Buyer shall have no further rights or remedies in connection with the facts or circumstances which caused such condition to be unsatisfied), or (2) cancel the Escrow by written notice to Sellers and the Escrow Agent. Upon cancellation of Escrow pursuant to this Section 17.1(c), the Deposit shall be promptly returned to Buyer without any further action by either Seller or Buyer and without any additional documentation, including notices, releases or waivers from any Person and, except for liability with respect to the Buyer Surviving Obligations and the Seller Surviving Obligations, the parties shall have no further rights or obligations under this Agreement. (d) If, as of the Closing Date, a Property Default exists with respect to one or more Properties, including a Property Default that relates to a breach of the Sellers’ representations and warranties in Section 10.1 with respect to any Properties, Buyer shall have the right to (1) waive such condition in writing (in which case this Agreement shall continue in full force and effect and Buyer shall have no further rights or remedies in connection with the facts or circumstances which caused such Property Default), (2) pursue an action for specific performance, but only if Buyer properly files, with a court of competent jurisdiction, a complaint for specific performance within thirty (30) days after the scheduled Closing Date, or (3) terminate this Agreement and cancel the Escrow by written notice to Sellers and the Escrow Agent. Upon termination of this Agreement and cancellation of the Escrow pursuant to this Section 17.1(d), the Deposit shall be promptly returned to Buyer without any further action by either Seller or Buyer and without any additional documentation, including notices, releases or waivers from any Person and, except for liability with respect to the Buyer Surviving Obligations and the Seller Surviving Obligations, the parties shall have no further rights or obligations under this Agreement. (e) If Buyer cancels the Escrow under due to a Seller Default of the kind that permits a cancellation of the Escrow pursuant to this Section 16.117.1, then all costs of the Escrow shall be paid by SellersSeller; if Buyer cancels the Escrow due to a Seller Default both (i) described in Section 15.1(a) or (d), or described in Section 15.1(c) if such Property Default would cause damages, costs or loss of value of the Properties in an amount that exceeds the Seller Liability Cap, either individually or in the aggregate, or is the result of Seller’s bad faith, willful misconduct, intentional misrepresentation or fraud, and (ii) for which specific performance is not a remedy, then Sellers shall reimburse Buyer for Buyer’s actual out of pocket expenses incurred in connection with the transactions contemplated by this Agreement, up to an amount not to exceed One Million Dollars ($1,000,000.00). For purposes of clarification, a failure to obtain an agreement or consent by a third party shall not result in Seller’s obligation to reimburse Buyer unless such failure was the result of Seller’s fraudulent actions.