Common use of Defaults by Buyer Clause in Contracts

Defaults by Buyer. If there is any default by Buyer under this Agreement prior to the last Closing or if Buyer fails to timely construct the Access Improvements contemplated by the Access Easement Agreement in accordance with the provisions of Section 4 thereof, then Mission may, at Mission's option, (a) since damages may be difficult to ascertain, retain the Deposit as liquidated damages, and declare this Agreement terminated in which case each party shall be relieved of all further obligations hereunder, or (b) if such default is the failure of Buyer to comply with any obligations of Buyer hereunder (other than the obligation of Buyer to close hereunder, or the obligations set forth in Section 3.6 with respect to submittal of documents or obtaining approvals by set deadlines), including, without limitation, Buyer's failure to comply with any of its obligations which survive the termination of this Agreement, bring an action against Buyer for damages. In addition to any default by Buyer hereunder resulting from any failure by Buyer to comply with any of Buyer's obligations hereunder, Buyer shall be in default hereunder if Buyer shall file a petition in bankruptcy or insolvency or for reorganization or arrangement under the bankruptcy laws of the United States or under any similar act of any state, or shall voluntarily take advantage of any such law or act by answer or otherwise, or shall be dissolved or shall make an assign- ment for the benefit of creditors or if involuntary proceedings under any such bankruptcy or insolvency law or for the dissolution of Buyer shall be instituted against Buyer or a receiver or trustee shall be appointed for the interest of Buyer under this Agreement or for all or substantially all of the property of Buyer, and such proceedings shall not be dismissed or such receivership or trusteeship vacated within 60 days after such institution or appointment. The foregoing shall be the sole remedies of Mission, and Mission shall not be entitled to, and hereby waives all rights to seek, specific performance of this Agreement.

Defaults by Buyer. If there Upon the occurrence of any of the following events: (i) either KNI or KNC shall not have received any payment due from Buyer hereunder by the date such payment is any default by Buyer due under this Agreement prior to the last Closing or if Buyer fails to timely construct the Access Improvements contemplated by the Access Easement Agreement in accordance with the provisions of Section 4 thereof, then Mission may, at Mission's option, (a) since damages may be difficult to ascertain, retain the Deposit as liquidated damagesAgreement, and declare this Agreement terminated in which case each party such failure shall be relieved remain uncured for a period of all further obligations hereunder, or two (b2) if such default is business days after written notice thereof; (ii) the failure of Buyer to comply perform any other obligation in this Agreement and such failure is not excused or cured within five (5) business days after written notice thereof; (iii) the occurrence of a Bankruptcy Event with respect to Buyer or its Affiliates; or (iv) the failure by any obligations of Buyer hereunder (other than the obligation Performance Assurance provider of Buyer to close hereunderperform any obligation of such Performance Assurance provider under any document executed and delivered in connection herewith, and such failure shall remain uncured for a period of three (3) business days after written notice thereof; then either KNI or KNC, in their sole discretion and without prior notice to Buyer, may do any one or more of the following: (a) suspend performance under the Agreement; (b) terminate the Agreement, whereby any and all obligations set forth in Section 3.6 with respect of Buyer, including payments due, will, at the option of Xxxx, become immediately due and payable; and/or (c) Set-off against any amount that Xxxx owes to submittal Buyer under this Agreement. If either KNI or KNC suspends performance and withholds delivery of documents or obtaining approvals by set deadlines)the Product as permitted above, it may sell the Product to a third party and deduct from the proceeds of such sale the purchase price and all reasonable costs resulting from Buyer's default as identified above, including, without limitation, all costs associated with the transportation, storage, and sale of the Product. The foregoing rights, which shall include, but not be limited to, specific performance, shall be cumulative and alternative and in addition to any other rights or remedies to which Xxxx may be entitled at law or in equity. In addition, Xxxx shall be entitled to recover from Buyer all court costs, attorneys' fees and expenses incurred by Xxxx in connection with Buyer's failure default, and interest on past due amounts at the Default Rate. "Set-off" means set-off, offset, combination of accounts, netting of dollar amounts of monetary obligations, right of retention or withholding or similar right to comply with any of its obligations which survive the termination of Xxxx is entitled (whether arising under this Agreement, bring an action against Buyer for damagesapplicable law, or in equity) that is exercised by Xxxx. In addition to any default by Buyer hereunder resulting from any failure by Buyer to comply with "Bankruptcy Event" means the occurrence of any of Buyer's obligations hereunder, Buyer shall be in default hereunder if Buyer shall file the following events with respect to a Person: (i) filing of a petition or otherwise commencing, authorizing or acquiescing in bankruptcy the commencement of a proceeding or insolvency or for cause of action under any bankruptcy, insolvency, reorganization or arrangement under the bankruptcy laws of the United States or under any similar act of any statelaw, or shall voluntarily take advantage of if any such law petition is filed or act by answer commenced against it; (ii) making of an assignment or otherwise, or shall be dissolved or shall make an assign- ment any general arrangement for the benefit of creditors or if involuntary proceedings under any such creditors; (iii) having a bankruptcy or insolvency law or for the dissolution of Buyer shall be instituted petition filed against Buyer or a receiver or trustee shall be appointed for the interest of Buyer under this Agreement or for all or substantially all of the property of Buyer, it and such proceedings shall petition is not be withdrawn or dismissed or such receivership or trusteeship vacated within 60 sixty (60) days after such institution filing; (iv) otherwise becoming bankrupt or appointment. The foregoing shall be the sole remedies insolvent (however evidenced); (v) having a liquidator, administrator, custodian, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of Mission, and Mission shall not be entitled to, and hereby waives all rights its property or assets; or (vi) being generally unable to seek, specific performance of this Agreementpay its debts as they fall due.

Defaults by Buyer. If there is any default by Buyer under this Agreement, following notice to Buyer and five (5) days, during which period Buyer may cure the default, Seller shall be entitled, as its sole remedy hereunder, to terminate this Agreement prior and to the last Closing or if Buyer fails to timely construct the Access Improvements contemplated by the Access Easement Agreement in accordance with the provisions of Section 4 thereof, then Mission may, at Mission's option, (a) since damages may be difficult to ascertain, receive and retain the Deposit as full liquidated damagesdamages for such default of Buyer, the parties hereto acknowledging that it is impossible to estimate more precisely the damages which might be suffered by Seller upon Buyer’s default, and declare that said Deposit is a reasonable estimate of Seller’s probable loss in the event of default by Buyer. Seller’s retention of said Deposit is intended not as a penalty, but as full liquidated damages pursuant to O.C.G.A. § 13-6-7. The right to retain the Deposit as full liquidated damages is Seller’s sole and exclusive remedy in the event of default hereunder by Buyer, and Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx Buyer: (a) for specific performance of this Agreement terminated in which case each party shall be relieved of all further obligations hereunderAgreement, or (b) if such default is to recover actual damages in excess of the failure of Buyer Deposit. The foregoing liquidated damages provision shall not apply to comply with any or limit Buyer’s liability for Buyer’s indemnification obligations of Buyer hereunder (other than the obligation of Buyer to close hereunder, or the obligations set forth provided in Section 3.6 5.1 and Buyer’s obligations in Section 5.2.2. Subject to Buyer’s right to receive a refund of the Deposit deposited with respect Escrow Holder in accordance with the terms hereof, Buyer hereby waives and releases any right to submittal (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of documents said Deposit (or obtaining approvals any part thereof) on the grounds it is unreasonable in amount and exceeds Seller’s actual damages or that its retention by set deadlines), including, without limitation, Buyer's failure to comply with any of its obligations which survive the termination of this Agreement, bring an action against Buyer for Seller constitutes a penalty and not agreed upon as reasonable liquidated damages. In addition the event this Agreement is terminated due to any the default by of Buyer hereunder resulting from any failure by Buyer to comply with any of Buyer's obligations hereunder, Buyer shall be shall, in default hereunder if Buyer shall file a petition in bankruptcy or insolvency or for reorganization or arrangement under addition, deliver to Seller, at no cost to Seller, the bankruptcy laws of the United States or under any similar act of any state, or shall voluntarily take advantage of any such law or act by answer or otherwise, or shall be dissolved or shall make an assign- ment for the benefit of creditors or if involuntary proceedings under any such bankruptcy or insolvency law or for the dissolution of Buyer shall be instituted against Buyer or a receiver or trustee shall be appointed for the interest of Buyer under this Agreement or for all or substantially all of the property of Buyer, and such proceedings shall not be dismissed or such receivership or trusteeship vacated within 60 days after such institution or appointment. The foregoing shall be the sole remedies of Mission, and Mission shall not be entitled to, and hereby waives all rights to seek, specific performance of this AgreementDue Diligence Items.