Purchaser Defaults. IN THE EVENT THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT SHALL NOT CLOSE ON ACCOUNT OF PURCHASER’S DEFAULT, THEN THIS AGREEMENT SHALL TERMINATE AND THE RETENTION OF THE DEPOSIT SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT, SUBJECT TO THE PROVISIONS OF THIS AGREEMENT THAT EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT; PROVIDED, HOWEVER, NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED TO LIMIT SELLER’S RIGHTS OR DAMAGES UNDER ANY INDEMNITIES GIVEN BY PURCHASER TO SELLER UNDER THIS AGREEMENT. IN CONNECTION WITH THE FOREGOING, THE PARTIES RECOGNIZE THAT SELLER WILL INCUR EXPENSE IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THAT THE PROPERTY WILL BE REMOVED FROM THE MARKET; FURTHER, THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF DETRIMENT TO SELLER CAUSED BY THE BREACH BY PURCHASER UNDER THIS AGREEMENT AND THE FAILURE OF THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR THE AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT OF PURCHASER’S BREACH OR DEFAULT. IN PLACING THEIR INITIALS AT THE PLACES PROVIDED, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION AT THE TIME THIS AGREEMENT WAS MADE. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. UPON DEFAULT BY PURCHASER, THIS AGREEMENT SHALL BE TERMINATED AND NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER, EACH TO THE OTHER, EXCEPT FOR THE RIGHT OF SELLER TO COLLECT SUCH LIQUIDATED DAMAGES FROM PURCHASER. PURCHASER FURTHER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT EXCEPT FOR PURCHASER’S RIGHT TO SPECIFICALLY ENFORCE THIS AGREEMENT PURSUANT TO SECTION 9.1, IT HEREBY WAIVES ANY RIGHT PURCHASER MAY HAVE TO SEEK DECLARATORY AND/OR INJUNCTIVE RELIEF AND/OR EQUITABLE RELIEF, OR TO RECORD A NOTICE OF THIS AGREEMENT OR ANY RIGHTS PURCHASER MAY HAVE HEREUNDER, OR TO RECORD OR FILE A NOTICE OF PENDENCY OF ANY ACTION OR PROCEEDINGS TO ENFORCE THIS AGREEMENT. Initial here: Initial here: ]
Purchaser Defaults. In the event that Purchaser fails to pay the Purchase Price on the Closing Date, Purchaser and Seller agree that the actual damages that Seller shall sustain as a result thereof shall be substantial and shall be extremely difficult and impractical to determine. Purchaser and Seller therefore agree that if Purchaser fails to pay the Purchase Price on the Closing Date, whether at or prior to the Closing, Seller’s remedy, provided that Seller is not then in material default under this Agreement beyond any applicable notice and cure period, shall be that Seller may elect to terminate this Agreement, to receive from the Escrow Agent, as full, complete and valid liquidated damages (and not as a penalty) the Deposit together with any interest earned thereon from Escrow Agent, and thereafter none of the parties hereto shall have any further liability or obligation to the other parties hereunder, except for such indemnities, liabilities and obligations as are expressly stated to survive the termination of this Agreement. Except with respect to Purchaser’s failure to pay the Purchase Price Purchaser on the Closing Date for which Seller may elect to terminate this Agreement and receive the Deposit as set forth in the foregoing provisions of this Section 24(a), Seller agrees not to terminate this Agreement but, provided that Seller is not then in material default under this Agreement beyond any applicable notice and cure period, Seller shall have all other rights and remedies available at law or in equity in the event Purchaser fails to perform any or all of the terms, covenants, conditions and agreements to be performed by Purchaser under the terms of this Agreement or otherwise defaults in any material respect under this Agreement with respect to its obligations to be performed on or before the Closing Date, provided that Seller gives Purchaser written notice of any such failure or default and that Purchaser does not cure or remedy such failure or default within fifteen (15) days following delivery of such notice to Purchaser.
Purchaser Defaults. Except to the extent excused as a result of an event of Force Majeure in accordance with Article XV, the occurrence of one or more of the following events shall constitute a default by Purchaser under this Agreement (a “Purchaser Default”); provided that an event of Force Majeure shall not excuse an event described in clause (a), clause (e), clause (f) or clause (g):
(a) Purchaser’s failure to pay any undisputed amount due to Owner under this Agreement by the due date, which failure is not cured within ten (10) days after the receipt by Purchaser of a written demand from Owner that such amount is due and owing and has not been timely paid.
(b) Purchaser’s failure to comply in any material respect with the provisions of Article XVI.
(c) The failure of the Québec Line to be capable of operating at or above 1,040 MW as of the Commercial Operation Date (where the NECEC Transmission Line is capable of operating at or above 1,040 MW as of the Commercial Operation Date), where Distribution Company has also not agreed in writing to begin transmission service under the Distribution Company TSA notwithstanding such operating capability, or to be capable of operating at or above 1,075 MW as of the earlier of the Purchaser Remediation Date or the end of the Remediation Period (where the NECEC Transmission Line is capable of operating at or above 1,075 MW as of the earlier of the Purchaser Remediation Date or the end of the Remediation Period), where Distribution Company has also not agreed in writing to begin transmission service under the Distribution Company TSA notwithstanding such operating capability.
(d) Purchaser’s failure to perform or comply with any of its obligations under this Agreement, other than those described in clauses (a), (b), and (c) above, in each case, in any material respect, and, if such failure is susceptible to cure, such failure continues for thirty (30) days after the receipt by Purchaser of written notice thereof from Owner, unless such cure shall reasonably require a longer period, in which case Purchaser shall be provided an additional thirty (30) days to complete such cure so long as Purchaser has promptly commenced such cure and thereafter diligently pursues such cure.
(e) Any representation or warranty made by Purchaser in this Agreement is false or misleading at the time made in any material respect.
(f) Any Insolvency Event occurs with respect to Purchaser.
(g) An Event of Default (as defined in the PPA) by Purchaser under the PPA ...
Purchaser Defaults. Except to the extent excused as a result of an event of Force Majeure in accordance with Article 16, the occurrence of one or more of the following events shall constitute a default by Purchaser under this Agreement (a "Purchaser Default"):
(a) Purchaser's failure to pay any amount due to Owner under this Agreement by the due date, which failure is not cured within thirty (30) days after the receipt by Purchaser of a demand from Owner that such amount is due and owing and has not been timely paid.
(b) Purchaser's failure to comply in any material respect with the provisions of Article 17.
(c) Purchaser's failure to perform or comply with any of its obligations under this Agreement, other than those described in clauses (a) and (b) above, or under the Letter Agreement, in each case, in any material respect, and, if such failure is susceptible to cure, such failure continues for thirty (30) days after the receipt by Purchaser of written notice thereof from Owner, unless such cure shall reasonably require a longer period, in which case Purchaser shall be provided such additional period as necessary to complete such cure so long as Purchaser has promptly commenced such cure and thereafter diligently pursues and completes such cure.
(d) Any representation or warranty made by Purchaser in this Agreement is false or misleading at the time made and such inaccuracy has a material adverse effect on the ability of Owner to perform its obligations under this Agreement, individually or in the aggregate, or on the business, operations or financial condition of Owner.
(e) Any Insolvency Event occurs with respect to Purchaser.
Purchaser Defaults. If Purchaser shall fail to perform Purchaser’s material obligations hereunder when obligated to do so in accordance with this Agreement (including, without limitation, Purchaser’s failure to deliver each of the items set forth in Section 8(B) one (1) business day prior to Closing Date in accordance with the terms hereof), the parties hereto agree that Seller’s sole remedy shall be to terminate this Agreement and retain the Deposit (together with all interest thereon, if any) as liquidated damages, it being expressly understood and agreed that in the event of Purchaser’s default, Seller’s damages would be impossible to ascertain and that the Deposit (together with all interest thereon, if any) constitutes a fair and reasonable amount of compensation in such event. Upon such termination, neither party to this Agreement shall have any further rights or obligations hereunder except that: (a) Purchaser shall return to Seller all written material relating to the Premises or the transaction contemplated herein delivered by or on behalf of Seller; (b) Escrow Agent shall deliver to Seller and Seller shall retain the Deposit (together with all interest thereon, if any) as liquidated damages, except with respect to any breaches of Surviving Obligations; and (c) the Surviving Obligations shall survive and continue to bind Purchaser and Seller.
Purchaser Defaults. In the event that Purchaser shall default under this Agreement, Purchaser and Seller agree that the damages that Seller shall sustain as a result thereof shall be substantial and shall be extremely difficult and impractical to determine. Purchaser and Seller therefore agree that if Purchaser fails to perform any or all of the terms, covenants, conditions and agreements to be performed by Purchaser hereunder, whether at or as of the Closing, Seller’s remedy shall be to receive as liquidated damages (but not as a penalty) the Deposit from Escrow Agent, and thereafter neither Purchaser nor Seller shall have any further liability or obligation to the other hereunder, except for such liabilities and obligations as are expressly stated to survive the termination of this Agreement. Purchaser and Seller agree that, considering all of the facts and circumstances existing as of the Effective Date, the amount of the Deposit is a fair and reasonable estimate of the damages that Seller would incur in the event of a default by Purchaser under this Agreement.
Purchaser Defaults. In the event that Purchaser, on or prior to the Closing Date, shall default in the performance of its obligations under this Agreement (other than de minimis obligations that do not affect the value of the transactions contemplated hereunder in any material respect), then Seller, as its sole and exclusive remedy and in lieu of all other rights or remedies otherwise provided at law or in equity, may terminate this Agreement and receive and retain the Xxxxxxx Money as full and complete liquidated damages for such default of Purchaser. The parties hereto acknowledge that it is impossible to estimate more precisely the damages which might be suffered by Seller upon Purchaser’s default. Seller’s receipt of the Xxxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to retain such sums as full liquidated damages is Seller’s sole and exclusive remedy in the event the purchase and sale of the Property is not consummated because of a default hereunder by Purchaser, and, upon receipt of such sums, Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx Purchaser: (i) for specific performance of this Agreement, or (ii) to recover actual, punitive, consequential, special or exemplary damages in excess of such sums in connection with any such default.
Purchaser Defaults. The Agreement shall include the following defaults:
Purchaser Defaults. If the Sellers terminate this Agreement pursuant to Section 10.1(f) or Section 10.1(g), then within three (3) Business Days following such termination the Purchaser shall pay to the Sellers cash in good funds in the amount of the Break Up Fee. In addition, the Surviving Obligations shall remain in effect.
Purchaser Defaults. In the event that Purchaser shall not complete closing under this Agreement even though the conditions benefiting Purchaser under ARTICLE VII hereof were satisfied, and neither party has otherwise terminated this Agreement pursuant to an express right to terminate as herein provided, and Seller is not in default hereunder, then Purchaser shall be liable to Seller for any actual damages of Seller as a result of such breach.
