Common use of Notice of Breach and Right to Cure Clause in Contracts

Notice of Breach and Right to Cure. In all cases of alleged breach by BAT of this Agreement entitling 22nd Century to terminate this Agreement under Section 5.03, 22nd Century must give BAT sixty (60) days’ prior written notice of such breach including the remedy sought, be it termination of this Agreement or another remedy (“Breach Notice”). The Breach Notice must also specify the articles and sections of this Agreement which are claimed to have been breached and must contain a description of the event(s) or occurrence(s) claimed to constitute a breach. In all cases, BAT shall have sixty (60) days from the date of receipt of the Breach Notice to cure the alleged breach or in good faith to dispute the existence of a breach. If the claimed breach is cured within sixty (60) days, this Agreement shall not terminate. If BAT fails to cure the alleged breach by BAT within sixty (60) days of the Breach Notice, this Agreement shall terminate upon the expiration of the sixty (60) days, unless BAT initiates its arbitration rights against such termination under this Agreement, in which case the termination of this Agreement or another remedy related thereto will not be effective until a final unappealable decision in such proceeding has been rendered. Any Breach Notice shall not prejudice any Party’s rights and obligations under this Agreement, including without limitation, 22nd Century’s right to receive monetary sums due hereunder. If BAT fails to cure the alleged breach by BAT within sixty (60) days of the Breach Notice, this Agreement shall terminate upon the expiration of the sixty (60) days, unless BAT initiates arbitration against such termination under this Agreement, in which case the termination of this Agreement or another remedy related thereto will not be effective and will be subject to the following: (i) if it is decided in a final unappealable or unappealed decision in such arbitration or an appeal thereof in accordance with Section 10.03 that the breach identified in such Breach Notice did not occur or did not entitle 22nd Century to a termination of this Agreement, or that the prerequisites of the termination do not exist, the termination shall be ineffective ab initio, or (ii) if it is decided in a final unappealable or unappealed decision in such arbitration or an appeal thereof in accordance with Section 10.03 that the breach identified in such Breach Notice occurred, that 22nd Century was entitled to the termination of this Agreement for such breach, and that the prerequisites of such termination exist, BAT shall have the right to cure such breach within thirty (30) days of receiving such decision, in which case the termination shall be ineffective, or absent such cure shall become effective at the end of such thirty (30) day period. Any Breach Notice shall not prejudice any Party’s rights and obligations under this Agreement, including without limitation, 22nd Century’s or BAT’s right to receive monetary sums due from the other Party hereunder.

Notice of Breach and Right to Cure. In all cases of alleged breach by BAT of this Agreement entitling 22nd Century to terminate this Agreement under Section 5.036.04, 22nd Century must give BAT sixty (60) days’ prior written notice of such breach including the remedy sought, be it termination of this Agreement or another remedy (“Breach Notice”). The Breach Notice must also specify the articles and sections of this Agreement which are claimed to have been breached and must contain a description of the event(s) or occurrence(s) claimed to constitute a breach. In all cases, BAT shall have sixty (60) days from the date of receipt of the Breach Notice to cure the alleged breach or in good faith to dispute the existence of a breach. If the claimed breach is cured within sixty (60) days, this Agreement shall not terminate. If BAT fails to cure the alleged breach by BAT within sixty (60) days of the Breach Notice, this Agreement shall terminate upon the expiration of the sixty (60) days, unless BAT initiates its arbitration rights against such termination under this Agreement, in which case the termination of this Agreement or another remedy related thereto will not be effective until a final unappealable decision in such proceeding has been rendered. Any Breach Notice shall not prejudice any Party’s rights and obligations under this Agreement, including without limitation, 22nd Century’s right to receive monetary sums due hereunder. If BAT fails to cure the alleged breach by BAT within sixty (60) days of the Breach Notice, this Agreement shall terminate upon the expiration of the sixty (60) days, unless BAT initiates arbitration against such termination under this Agreement, in which case the termination of this Agreement or another remedy related thereto will not be effective and will be subject to the following: (i) if it is decided in a final unappealable or unappealed decision in such arbitration or an appeal thereof in accordance with Section 10.03 11.02 that the breach identified in such Breach Notice did not occur or did not entitle 22nd Century to a termination of this Agreement, or that the prerequisites of the termination do not exist, the termination shall be ineffective ab initio, or (ii) if it is decided in a final unappealable or unappealed decision in such arbitration or an appeal thereof in accordance with Section 10.03 11.02 that the breach identified in such Breach Notice occurred, that 22nd Century was entitled to the termination of this Agreement for such breach, and that the prerequisites of such termination exist, BAT shall have the right to cure such breach within thirty (30) days of receiving such decision, in which case the termination shall be ineffective, or absent such cure shall become effective at the end of such thirty (30) day period. Any Breach Notice shall not prejudice any Party’s rights and obligations under this Agreement, including without limitation, 22nd Century’s or BAT’s right to receive monetary sums due from the other Party hereunder.