Common use of Purchaser Default Clause in Contracts

Purchaser Default. The parties acknowledge and agree that Seller should be entitled to compensation for any detriment suffered if Purchaser fails to consummate the purchase of the Property if and when required to do so under the terms of this Agreement, but agree that it would be extremely difficult to ascertain the extent of the actual detriment Seller would suffer as a result of such failure. Consequently, if Purchaser fails to consummate the purchase of the Property on the Closing Date or fails to perform any of its other covenants in any material respect, or otherwise defaults in its obligations hereunder, then Seller shall be entitled to terminate this Agreement by giving written notice thereof to Purchaser prior to or at the Closing, in which event the Deposit shall be paid to Seller as fixed, agreed and liquidated damages and as its sole and exclusive remedy, and, after the payment of the Deposit to Seller, neither Seller nor Purchaser will have any further rights or obligations under this Agreement, except for any obligations that expressly survive termination, except that Seller shall have the right to pursue an action against Purchaser for Seller’s actual damages suffered on account of a default by Purchaser under Sections 5.1.2, 6.2, 12.2, and 15.17 of this Agreement; provided, however, that nothing contained herein shall constitute a waiver by Seller of any damages, rights or remedies which may be available to Seller against Purchaser at law or in equity as a result of any material breach of a representation or warranty or other material default of Purchaser hereunder (other than Purchaser’s failure to consummate the purchase of the Property on the Closing Date for which Seller shall be paid the Deposit in accordance with the immediately preceding sentence), all of which are hereby expressly reserved by Seller; provided, however, nothing contained herein shall entitle Seller to consequential or punitive damages or any other sums in excess of Seller’s actual damages.

Purchaser Default. The parties acknowledge and agree In the event that Seller should be entitled to compensation for any detriment suffered if Purchaser fails to consummate the purchase one or more of the Property if and when required to do so under the terms of this Agreement, but agree that it would be extremely difficult to ascertain the extent Closings of the actual detriment Seller would suffer Tranches pursuant to this Agreement do not occur as a result of such failure. Consequently, if Purchaser fails to consummate the purchase of the Property on the Closing Date or fails to perform any of its other covenants in any material respect, or otherwise defaults in its obligations hereunder, then Seller shall be entitled to terminate this Agreement by giving written notice thereof to Purchaser prior to or at the Closing, in which event the Deposit shall be paid to Seller as fixed, agreed and liquidated damages and as its sole and exclusive remedy, and, after the payment of the Deposit to Seller, neither Seller nor Purchaser will have any further rights or obligations under this Agreement, except for any obligations that expressly survive termination, except that Seller shall have the right to pursue an action against Purchaser for Seller’s actual damages suffered on account of a default by Purchaser under Sections 5.1.2, 6.2, 12.2, and 15.17 of this Agreement; provided, however, that nothing contained herein shall constitute a waiver by Seller of any damages, rights or remedies which may be available to Seller against Purchaser at law or in equity as a result of any material breach of a representation or warranty or other material default of Purchaser hereunder (other than Purchaser’s failure to consummate timely deliver the purchase consideration for the Notes as set forth herein (the “Purchaser Default”), then, unless and until the Purchaser Default is cured: (a) The Purchaser shall subordinate its Security Interest (as defined in the Security Agreement) to any funding that the Company obtains in lieu of the Property on proceeds not received because of the Closing Date for which Seller Purchaser Default under this Agreement and the Purchaser shall, at its own expense, take such actions that the Company may reasonably request to subordinate the Security Interest. (b) The votes that Purchaser is entitled to cast pursuant to Section 4(a)(iii) of the Certificate of Designation shall be paid reduced as follows: twenty percent (20%) if the Deposit Second Tranche does not close; thirty percent (30%) if the Third Tranche does not close; and thirty percent (30%) if the Final Tranche does not close. (c) Any unvested portions of the Warrant and Additional Warrant shall be automatically forfeited, cancelled and of no further force and effect and the Purchaser shall have no further rights to purchase such shares. (d) During the period of the Purchaser Default, interest shall cease to accrue for the lesser of (i) a period of six (6) months or (ii) until such time as the Purchaser Default is cured. (e) The Company, may, in accordance with its sole discretion, without penalty, terminate any or all Closings and the immediately preceding sentence)sale of the Notes contemplated to occur in connection therewith. Should the Purchaser know, all or have reason to know that one or more of which are hereby expressly reserved by Seller; providedthe closings of the Second Tranche, howeverThird Tranche and Final Tranche pursuant to this Agreement will not occur, nothing contained herein the Purchaser shall entitle Seller to consequential or punitive damages or any other sums in excess of Seller’s actual damagespromptly inform the Company.

Purchaser Default. The parties acknowledge and agree that Seller should be entitled If, prior to compensation for any detriment suffered if Closing, Purchaser fails to consummate the purchase of the Property if and when required to do so under the terms of this Agreement, but agree that it would be extremely difficult to ascertain the extent of the actual detriment Seller would suffer as a result of such failure. Consequently, if Purchaser fails to consummate the purchase of the Property on the Closing Date materially breaches or fails to perform any of its other covenants herein in any material respectrespect and as a result thereof fails to close as required by this Agreement, and such breach or failure shall continue for a period of fifteen (15) Business Days after written notice thereof from Seller specifying to which Facility the default applies and the specific nature of the default (other than a failure to deliver the Portfolio Purchase Price upon satisfaction of Purchaser’s Conditions Precedent for which no cure period shall be given), the parties stipulate and agree that actual damages may be difficult, if not impossible, to compute. Consequently, in the event of any such material breach or failure by Purchaser pursuant to this Section, then, provided that Sellers are not then in material breach of any provision of this Agreement, Sellers’ sole and exclusive remedy (except to the extent caused by any acts or omissions constituting fraud by Purchaser) at law, in equity or otherwise defaults in its obligations hereunder, then Seller shall be entitled either to (a) terminate this Agreement in its entirety and retain the Deposit (plus any accrued interest thereon) as fixed, agreed and liquidated damages and not as a penalty, or (b) terminate this Agreement only as to the specific Facility as to which Purchaser is in default, by giving written notice thereof to Purchaser prior to or at the Closing, in which event an amount equal to the amount of Deposit allocable to the Facility which is the subject of such default of Purchaser shall be paid to Seller Sellers as fixed, agreed and liquidated damages and not as its sole a penalty, and exclusive remedy, and, after the payment of such portion of the Deposit to SellerSellers, neither Seller Sellers nor Purchaser will have any further rights or obligations under this AgreementAgreement with respect to such Facility, except for any obligations that expressly survive termination. In the event that Sellers elect to terminate this Agreement in its entirety, then upon Sellers’ receipt of the Deposit (plus any accrued interest thereon), (i) all rights and obligations of Purchaser and Sellers under this Agreement shall expire, except that Seller shall have for such provisions as expressly survive the expiration or the termination hereof; and (ii) Sellers hereby waive any right to pursue an action against Purchaser for Sellerspecific performance of Purchaser’s actual damages suffered on account of a default by Purchaser obligations under Sections 5.1.2, 6.2, 12.2, this Agreement and 15.17 of this Agreement; provided, however, that nothing contained herein shall constitute a waiver by Seller of any damages, rights or other remedies which may be available to Seller against Purchaser at law or in equity as a result of any material breach of a representation or warranty or other material default of Purchaser hereunder (other than Purchaser’s failure to consummate equity. Notwithstanding the purchase of the Property on the Closing Date for which Seller foregoing, nothing in this Section 10.02 shall be paid the Deposit deemed to limit Sellers’ recovery in accordance connection with the immediately preceding sentence), all indemnity provided by Purchaser in Section 3.04 of which are hereby expressly reserved by Seller; provided, however, nothing contained herein shall entitle Seller to consequential or punitive damages or any other sums in excess of Seller’s actual damagesthis Agreement.

Purchaser Default. The parties acknowledge and agree that Seller should be entitled to compensation for any detriment suffered Notwithstanding anything contained herein, each of the following events shall constitute a material breach of this Agreement by Purchaser (each a “Purchaser Default”): (a) if Purchaser fails to consummate take all necessary actions to cause the purchase Change of the Property if Control Approval to be obtained and when required thereafter fails to do so under the terms cure such failure within five (5) Business Days after receipt of this Agreement, but agree that it would be extremely difficult to ascertain the extent of the actual detriment Seller would suffer as a result of such failure. Consequently, written notice from Seller; (b) if Purchaser fails to consummate (i) cause the purchase Company Group Bonds to be replaced on a timely basis in the course of its procedure for the Change of Control Approval and the Company Group Bonds Proceeds to be timely released by the WVDEP and delivered to the Seller in accordance with Section 4.2(a), or (ii) pay to the Seller an amount equal to the amount of the Property on Company Group Bonds as of the Closing Date or in accordance with Section 4.2(b); (c) if Purchaser fails to perform timely reimburse the Seller for any costs or expenses incurred by the Seller for which the Seller is entitled to reimbursement in accordance with Section 4.6 and thereafter fails to cure such failure within ten (10) Business Days after receipt of written notice from the Seller; (d) if Purchaser or any of its Affiliates takes any of actions prohibited by Section 4.4(a) or violates the negative covenants in Section 4.7 and thereafter fails to cure such breach within ten (10) Business Days after receipt of written notice from Seller; (e) if Purchaser or any of its Affiliates fails to carry the insurance as required hereunder and in Exhibit A and such default shall continue for a period of ten (10) Business Days after receipt of written notice from Seller; (f) if Purchaser or any of its Affiliates has been notified in writing by the U.S. Office of Surface Mining Reclamation and Enforcement or the WVDEP that Purchaser or any of its Affiliates (i) is ineligible to receive surface mining permits or that the Change of Control Approvals cannot be granted and thereafter has not resolved such decisions by taking corrective action or successfully appealed such decisions after fully completing the appeals process permitted under applicable law, as applicable, (ii) is issued a show cause order that is not stayed and thereafter successfully appealed after fully completing the appeals process permitted under applicable law or terminated; or (iii) is prohibited from mining by a cessation order that is not stayed and thereafter successfully appealed after fully completing the appeals process permitted under applicable law or terminated; (g) if Purchaser or any Person that, together with its Affiliates, owns ten percent (10%) or more of the equity interests of Purchaser becomes subject to any bond forfeiture, permit suspension, or revocation that is not successfully appealed after fully completing the appeals process permitted under applicable law or terminated; (h) if any of the events of determination of permit ineligibility, denial of Change of Control Approvals, issuance of show cause order or cessation order, bond forfeiture, permit suspension or permit revocation as set forth in the foregoing Section 4.9(f) or Section 4.9(g) occurs and Purchaser fails to timely file any necessary appeals or take corrective action, prosecute any appeals or actions with all diligence, or permit Seller to intervene in any appeal or action processes; (i) if Purchaser or any of its Affiliates otherwise breaches or defaults in the performance of any other covenants provisions of this Article 4 or breaches or defaults in the provisions of the Contract Mining Agreement in any material respect, respect and (i) Purchaser fails to cure such breach or otherwise defaults in its obligations hereunder, then Seller shall be entitled to terminate this Agreement by giving default within ten (10) Business Days after receiving written notice thereof from the Seller, or (ii) if such breach or default is inherently incapable of being cured within such period of time, Purchaser fails to commence curing the same within such period of time or at any time thereafter fails to continue diligently pursuing the cure of such breach or default before the same has been completely cured; (j) if Lender has provided written notice of the occurrence of an Event of Default (as defined in the Loan Agreement) to any Loan Party (as defined in the Loan Agreement) or Borrower Entity (as defined in the Loan agreement) that has not been cured within the applicable cure period, if any, as provided in the Loan Agreement; (k) if Seller has provided written notice of the occurrence of an Event of Default (as defined in the Seller Lien Pledge Agreement) to Purchaser prior to or at that has not been cured within the Closingapplicable cure period, if any, as provided in which event the Deposit shall be paid to Seller as fixed, agreed and liquidated damages and as its sole and exclusive remedy, and, after the payment Lien Pledge Agreement; or (l) if Lender has provided written notice of the Deposit to Seller, neither Seller nor Purchaser will have occurrence of an Event of Default (as defined in any further rights or obligations under this Agreement, except for any obligations that expressly survive termination, except that Seller shall have the right to pursue an action against Purchaser for Seller’s actual damages suffered on account of a default by Purchaser under Sections 5.1.2, 6.2, 12.2, and 15.17 of this Agreement; provided, however, that nothing contained herein shall constitute a waiver by Seller of any damages, rights or remedies which may be available to Seller against Purchaser at law or in equity as a result of any material breach of a representation or warranty or other material default of Purchaser hereunder (other than Purchaser’s failure to consummate the purchase of the Property on Security Instruments) to any Borrower Entity (as defined in the Closing Date Loan Agreement) that is also a party to the Security Instruments that has not been cured within the applicable cure period, if any, as provided for which Seller shall be paid in the Deposit in accordance with the immediately preceding sentence), all of which are hereby expressly reserved by Seller; provided, however, nothing contained herein shall entitle Seller to consequential or punitive damages or any other sums in excess of Seller’s actual damagesSecurity Instruments.

Purchaser Default. The parties acknowledge (1) In the event PURCHASER refuses or neglects to provide any of the items herein stated or comply with any provisions hereunder, and/or fails to promptly make any of the payments as provided herein and/or fails to proceed with the Engagement(s) and/or fails to furnish PRODUCER or ARTIST(s) with any documentation, tickets or notice or proof thereof as required hereunder, at the times herein specified, then any such failure shall be deemed a substantial and agree that Seller should be entitled material breach of this Agreement and PRODUCER shall have the right (in PRODUCER'S sole discretion), without prejudice to any other rights and remedies to: (i) terminate this Agreement and cancel any or all remaining Engagement(s) hereunder, in which event PRODUCER shall have no further liabilities and/or obligations in connection therewith; (ii) retain all amounts already paid to PRODUCER by PURCHASER as partial compensation for any detriment suffered if Purchaser fails such breach; and (iii) receive the GUARANTEE (or the balance thereof) and all other Compensation due pursuant to consummate this Agreement; and PRODUCER/ARTIST shall have no further liabilities and/or obligations in connection with this Agreement. For the purchase avoidance of the Property if doubt, in all instances PURCHASER shall remain responsible for all transportation, accommodations, and when required expense reimbursements for PRODUCER/ARTIST and entourage pursuant to do so under the terms of this Agreement. (2) If, but agree that it would be extremely difficult to ascertain on or before the extent date of the actual detriment Seller would suffer as a result of such failure. Consequentlyany scheduled Engagement, if Purchaser fails to consummate the purchase of the Property on the Closing Date PURCHASER has failed, neglected, or fails refused to perform any of its contract with PRODUCER/ARTIST, and/or any contract with any third party relating to this Engagement, and/or any other covenants in contract with any material respectother performer for any other engagement (whether or not related), or otherwise defaults if the financial standing or credit of PURCHASER has been impaired or is in its obligations hereunderPRODUCER'S opinion unsatisfactory, then Seller shall be entitled to terminate this Agreement by giving written notice thereof to Purchaser prior to or at the Closing, in which event the Deposit shall be paid to Seller as fixed, agreed and liquidated damages and as its sole and exclusive remedy, and, after the payment of the Deposit to Seller, neither Seller nor Purchaser will have any further rights or obligations under this Agreement, except for any obligations that expressly survive termination, except that Seller PRODUCER shall have the right to pursue an action against Purchaser for Seller’s actual damages suffered on account demand payment of the full GUARANTEE and all other Compensation due pursuant to this Agreement. If PURCHASER fails or refuses to make such payment forthwith, then any such failure shall be deemed a default by Purchaser under Sections 5.1.2, 6.2, 12.2, substantial and 15.17 material breach of this Agreement; provided, however, that nothing contained herein and PRODUCER shall constitute a waiver by Seller of any damages, rights or remedies which may be available to Seller against Purchaser at law or have the right (in equity as a result of any material breach of a representation or warranty or other material default of Purchaser hereunder (other than Purchaser’s failure to consummate the purchase of the Property on the Closing Date for which Seller shall be paid the Deposit in accordance with the immediately preceding sentencePRODUCER'S sole discretion), all of which are hereby expressly reserved by Seller; provided, however, nothing contained herein shall entitle Seller without prejudice to consequential or punitive damages or any other sums rights and remedies, to: (i) terminate this Agreement and cancel any or all remaining Engagement(s) hereunder, in excess which event PRODUCER shall have no further liabilities and/or obligations in connection therewith; (ii) retain all amounts already paid to PROUDUCER by PURCHASER as partial compensation for such anticipatory breach; and (iii) receive the full GUARANTEE (or balance thereof) and all other Compensation due pursuant to this Agreement; and PRODUCER/ARTIST shall have no further liabilities and or obligations in connection with this Agreement. For the avoidance of Seller’s actual damagesdoubt, in all instances PURCHASER shall remain responsible for all transportation, accommodations, and expense reimbursements for PRODUCER/ARTIST and entourage pursuant to the terms of this Agreement.

Purchaser Default. The parties acknowledge and agree that Seller should be entitled to compensation for any detriment suffered if Purchaser breaches any of its representations or warranties or fails to consummate the purchase perform any of the Property if and when required to do so under the terms of this Agreementits covenants in any material respect, but the parties agree that it would be extremely difficult to ascertain the extent of the actual detriment Seller would suffer as a result of such breach and/or failure. Consequently, if Purchaser breaches any of its representations in a material manner or warranties, fails to consummate the purchase of the Property Group One Properties on the Group One Closing Date and or the Group Two Properties on the Group Two Closing Date, or fails to perform any of its other covenants in any material respect, or otherwise defaults in its obligations hereunderhereunder (including its obligations under Section 5e above), then Seller shall be entitled to terminate this Agreement by giving written notice thereof to Purchaser prior to or at the Group One Closing or the Group Two Closing, as the case may be, in which event the Deposit Xxxxxxx Money, or the Group Two Xxxxxxx Money if the Group One Closing has occurred, shall be paid to Seller as fixed, agreed and liquidated damages and as its sole and exclusive remedydamages, and, after the payment of the Deposit Xxxxxxx Money or the Group Two Xxxxxxx Money to Seller, this Agreement shall be null and void, and neither Seller nor Purchaser will have any further rights or obligations under this Agreement, except for any obligations that expressly survive termination, except that termination and any remedies at law or equity available to Seller shall have the right to pursue an action against Purchaser for enforce Seller’s actual damages suffered on account of a default by Purchaser under Sections 5.1.2, 6.2, 12.2, and 15.17 rights or remedies that expressly survive termination of this Agreement; provided, however, that nothing contained herein . In no event whatsoever shall constitute a waiver by Seller of be entitled to any damages, rights or remedies which may be available to Seller against Purchaser at law or in equity as a result of any material breach of a representation or warranty or other material default of Purchaser hereunder (hereunder, other than Purchaser’s failure to consummate the purchase of the Property on the Closing Date for which Seller shall be paid the Deposit as specifically set forth in accordance with the immediately preceding sentence), all of which are hereby expressly reserved by Seller; provided, however, nothing contained herein shall entitle Seller to consequential or punitive damages or any other sums this Section 12(d) and in excess of Seller’s actual damages.Section 2a