Common use of Remedies for Failure to Close Clause in Contracts

Remedies for Failure to Close. (a) In the event at Closing all conditions to the obligations of Purchaser to close have been satisfied or waived and Purchaser fails or refuses to close other than for Seller’s default, Seller shall be entitled, as Seller’s sole remedies at law or in equity, either to enforce specific performance of Purchaser’s obligations or to terminate this Agreement pursuant to Article 11. In the event at Closing all conditions to the obligations of Seller to close have been satisfied or waived and Seller fails or refuses to close other than for Purchaser’s default, Purchaser shall be entitled, as Purchaser’s sole remedies, (1), at its election, either to enforce specific performance of Seller’s obligations or to terminate this Agreement pursuant to Article 11, and, in addition, (2) to obtain reimbursement from Seller for of the costs of its Purchaser Xxxxxx, as provided in (c) below. (b) Purchaser and Seller agree and stipulate, as a matter of contract, that specific performance will be an available remedy for an unexcused failure to close, without regard to whether specific performance would otherwise be available under the laws of the State of Texas regarding remedies. A party claiming injury by a failure to close may immediately file suit under this section in state district court in Tarrant County, Texas, for specific performance and, if the party claiming injury is the Purchaser, for the cost of the Purchaser Xxxxxx, without the need to pursue dispute resolution or provide advance notice as otherwise required by Article 10. (c) Seller acknowledges that in connection with the execution and delivery of this Agreement Purchaser will be entering into Hedging Transactions at current NYMEX strip prices for the quantities of Hydrocarbons set forth in Schedule 3.3(c) (the “Purchaser Xxxxxx”). In the event at Closing all conditions to the obligations of Seller to close have been satisfied or waived and Seller fails or refuses to close, or Purchaser terminates this Agreement pursuant to Section 11.1(f), Seller shall promptly pay to Purchaser (in addition to any other damages that Purchaser may be entitled to receive) the aggregate cost to Purchaser for the termination or unwinding of the Purchaser Xxxxxx.

Remedies for Failure to Close. (a) In the event at Closing (i) all or any of the Principals shall fail to perform their obligations under Section 3 or any of their obligations to close the transactions contemplated hereunder and all conditions then required hereunder for such obligation to the perform shall have been satisfied, or waived by them, or (ii) any Conveying Party shall fail to perform any of its obligations of Purchaser to close the transactions contemplated by its respective Contribution Agreement and all conditions then required thereunder for such obligations to perform shall have been satisfied satisfied, or waived by it, the Sun Group and Purchaser fails or refuses to close other than for Seller’s defaultthe Acquiring Parties, Seller at their option and as their sole and exclusive remedies, shall be entitled, as Seller’s sole remedies at law or in equity, either to enforce specific performance of Purchaser’s obligations or to entitled to: (A) terminate this Agreement pursuant to Article 11. In and the event at Closing all conditions Contribution Agreements by written notice delivered to the obligations Principals and recover from the Principals, as liquidated damages, the aggregate sum of Seller One Million Dollars ($1,000,000.00), for such failure to close have been satisfied or waived and Seller fails or refuses to close other than for Purchaser’s default, Purchaser shall be entitled, as Purchaser’s sole remedies, (1), at its election, either to enforce specific performance of Seller’s obligations or to terminate the transactions under this Agreement pursuant to Article 11and the Contribution Agreements, andand thereafter neither any Principal, in additionany Conveying Party, (2) to obtain reimbursement from Seller for any member of the costs of its Purchaser XxxxxxSun Group or any Acquiring Party shall have any further or other liability hereunder or under any Contribution Agreement, as except to the extent expressly provided herein and therein; or (B) waive the default and proceed to consummate the transactions described in (c) belowthis Agreement and the Contribution Agreements. (b) Purchaser In the event (i) the Sun Group and Seller agree the Acquiring Parties do not elect to terminate this Agreement and stipulatethe Contribution Agreements as permitted herein and therein, and (ii) all conditions then required hereunder for the obligation of the Acquiring Parties to acquire the Contributed Property pursuant to the Contribution Agreements have been satisfied, or waived by, the Acquiring Parties, and thereafter the Sun Group and the Acquiring Parties fail to perform their obligations under Section 3 or any of their obligations to close the transactions contemplated by this Agreement or the respective Contribution Agreements, the Principals and the Conveying Parties, as a matter their sole and exclusive remedies, shall be entitled to terminate this Agreement and the Contribution Agreements by written notice delivered to the Sun Group and recover from the Sun Group, as liquidated damages, the aggregate sum of contractOne Million Dollars ($1,000,000.00), that specific performance will be an available remedy for an unexcused failure to close, without regard to whether specific performance would otherwise be available under the laws of the State of Texas regarding remedies. A party claiming injury by a such failure to close may immediately file suit the transactions under this section in state district court in Tarrant County, Texas, for specific performance and, if the party claiming injury is the Purchaser, for the cost Agreement and any and all of the Purchaser XxxxxxContribution Agreements, without and thereafter neither any Principal, any Conveying Party, any member of the need Sun Group or any Acquiring Party shall have any further or other liability hereunder or under any Contribution Agreement, except to pursue dispute resolution or provide advance notice as otherwise required by Article 10the extent expressly provided herein and therein. (c) Seller acknowledges that Each Principal, for itself, and on behalf of each Conveying Party, and each member of the Sun Group expressly (i) waives any and all other rights or remedies available to it by reason of any such failure to perform by any other party, whether arising at law, in connection with the execution and delivery of this Agreement Purchaser will be entering into Hedging Transactions at current NYMEX strip prices for the quantities of Hydrocarbons set forth in Schedule 3.3(c) (the “Purchaser Xxxxxx”). In the event at Closing all conditions to the obligations of Seller to close have been satisfied or waived and Seller fails or refuses to closeequity, or Purchaser terminates this Agreement pursuant otherwise (including, without limitation, any right to Section 11.1(f)a suit for damages (other than liquidated damages as provided above) and (ii) agrees that the actual damages which might be incurred by the Sun Group and the Acquiring Parties or the Principals and the Conveying Parties, Seller shall promptly pay as applicable, by reason of any such failure to Purchaser (in addition perform, are and would be difficult or impossible to any other damages ascertain and that Purchaser may be entitled to receive) the aggregate cost to Purchaser for the termination or unwinding applicable amount specified above is a fair and reasonable estimate of the Purchaser Xxxxxxsuch damages.

Remedies for Failure to Close. (a) In the event at Closing all conditions or any of the Principals, Project Entities or their affiliates default in the performance of any of the Transaction Agreements, SCOLP may, as SCOLP’s exclusive remedy: (i) terminate this Agreement and all of the other Transaction Agreements by written notice delivered to the obligations Principals at or prior to the Closing Date and receive a full refund of Purchaser to close have been satisfied the Deposit and all earnings thereon; or waived and Purchaser fails or refuses to close other than for Seller’s default, Seller shall be entitled, as Seller’s sole remedies at law or in equity, either to enforce (ii) obtain specific performance of Purchaserthe terms and conditions hereof and of the other Transaction Agreements provided that any suit for specific performance must be brought within ninety (90) days after such default, to the extent permitted by law. Notwithstanding the foregoing, in no event will the Principals, Project Entities or their affiliates be liable or responsible for (and SCOLP hereby waives) all claims to recover any monetary damages whatsoever, whether general, special, incidental or consequential allegedly arising from any breach of this Agreement by the Principals, Project Entities or their affiliates; provided, however, that, in the event that either (i) the Principals are unable to obtain the requisite consent of Tremont to the transactions contemplated by this Agreement, SCOLP shall receive a full refund of the Deposit and the Principals and the Project Entities, jointly and severally, shall promptly reimburse SCOLP for the lesser of One Hundred Thousand Dollars ($100,000) or SCOLP’s obligations actual, out-of-pocket costs and expenses incurred in connection with the transactions contemplated by this Agreement, or (ii) the Principals are unable to receive from the existing lenders the necessary consents and releases to release the Communities from any and all security interests, pledges, liens, claims or encumbrances prior to Closing, SCOLP shall receive a full refund of the Deposit and the Principals and the Project Entities shall, jointly and severally, promptly reimburse SCOLP for up to One Hundred Thousand Dollars ($100,000) of SCOLP’s costs and expenses incurred in connection with the transaction contemplated by this Agreement. In the event SCOLP or its affiliates default in the performance of this Agreement or the other Transaction Agreements, the Principals shall be entitled to terminate this Agreement pursuant and have the Escrow Agent pay to Article 11the Principals, as liquidated damages, the Deposit (and all earnings thereon), the same being the Principals’ sole and exclusive remedy, and SCOLP shall have no further or other liability hereunder. In The Principals and SCOLP agree that in the event at Closing all conditions of a default by SCOLP or its affiliates under this Agreement or the other Transaction Agreements, the Principals’ damages would be difficult or impossible to ascertain, and the obligations amount of Seller to close have been satisfied the Deposit represents a reasonable estimate of such damages. Neither SCOLP, nor any designee, transferee or waived and Seller fails assignee of SCOLP, nor any officers, directors, shareholders or refuses to close other than for Purchaser’s defaultpartners, Purchaser general or limited, of SCOLP or such designee, transferee or assignee, shall be entitledpersonally or individually liable with respect to any obligation under this Agreement, as Purchaser’s sole remediesall such personal and individual liability, (1)if any, at being hereby waived by the Principals on its electionbehalf and on behalf of all persons claiming by, either to enforce specific performance of Seller’s obligations through or to terminate this Agreement pursuant to Article 11, and, in addition, (2) to obtain reimbursement from Seller for of the costs of its Purchaser Xxxxxx, as provided in (c) below. (b) Purchaser and Seller agree and stipulate, as a matter of contract, that specific performance will be an available remedy for an unexcused failure to close, without regard to whether specific performance would otherwise be available under the laws of the State of Texas regarding remedies. A party claiming injury by a failure to close may immediately file suit under this section in state district court in Tarrant County, Texas, for specific performance and, if the party claiming injury is the Purchaser, for the cost of the Purchaser Xxxxxx, without the need to pursue dispute resolution or provide advance notice as otherwise required by Article 10Principals. (c) Seller acknowledges that in connection with the execution and delivery of this Agreement Purchaser will be entering into Hedging Transactions at current NYMEX strip prices for the quantities of Hydrocarbons set forth in Schedule 3.3(c) (the “Purchaser Xxxxxx”). In the event at Closing all conditions to the obligations of Seller to close have been satisfied or waived and Seller fails or refuses to close, or Purchaser terminates this Agreement pursuant to Section 11.1(f), Seller shall promptly pay to Purchaser (in addition to any other damages that Purchaser may be entitled to receive) the aggregate cost to Purchaser for the termination or unwinding of the Purchaser Xxxxxx.

Remedies for Failure to Close. (a) In the event at Closing all conditions or any of the Principals, Project Entities or their affiliates default in the performance of any of the Transaction Agreements, SCOLP may, as SCOLP’s exclusive remedy: (i) terminate this Agreement and all of the other Transaction Agreements by written notice delivered to the obligations Principals at or prior to the Closing Date and receive a full refund of Purchaser to close have been satisfied the Deposit and all earnings thereon; or waived and Purchaser fails or refuses to close other than for Seller’s default, Seller shall be entitled, as Seller’s sole remedies at law or in equity, either to enforce (ii) obtain specific performance of Purchaserthe terms and conditions hereof and of the other Transaction Agreements provided that any suit for specific performance must be brought within ninety (90) days after such default, to the extent permitted by law. Notwithstanding the foregoing, in no event will the Principals, Project Entities or their affiliates be liable or responsible for (and SCOLP hereby waives) all claims to recover any monetary damages whatsoever, whether general, special, incidental or consequential allegedly arising from any breach of this Agreement by the Principals, Project Entities or their affiliates; provided, however, that, in the event that the Principals are unable to receive from the existing lenders the necessary consents and releases to release the Communities from any and all security interests, pledges, liens, claims or encumbrances prior to Closing, SCOLP shall receive a full refund of the Deposit and the Principals and the Project Entities shall, jointly and severally, promptly reimburse SCOLP for the lesser of One Hundred Thousand Dollars ($100,000) or SCOLP’s obligations actual, out-of-pocket costs and expenses incurred in connection with the transaction contemplated by this Agreement. In the event SCOLP or its affiliates default in the performance of this Agreement or the other Transaction Agreements, the Principals shall be entitled to terminate this Agreement pursuant and have the Escrow Agent pay to Article 11the Principals, as liquidated damages, the Deposit (and all earnings thereon), the same being the Principals’ sole and exclusive remedy, and SCOLP shall have no further or other liability hereunder. In The Principals and SCOLP agree that in the event at Closing all conditions of a default by SCOLP or its affiliates under this Agreement or the other Transaction Agreements, the Principals’ damages would be difficult or impossible to ascertain, and the obligations amount of Seller to close have been satisfied the Deposit represents a reasonable estimate of such damages. Neither SCOLP, nor any designee, transferee or waived and Seller fails assignee of SCOLP, nor any officers, directors, shareholders or refuses to close other than for Purchaser’s defaultpartners, Purchaser general or limited, of SCOLP or such designee, transferee or assignee, shall be entitledpersonally or individually liable with respect to any obligation under this Agreement, as Purchaser’s sole remediesall such personal and individual liability, (1)if any, at being hereby waived by the Principals on its electionbehalf and on behalf of all persons claiming by, either to enforce specific performance of Seller’s obligations through or to terminate this Agreement pursuant to Article 11, and, in addition, (2) to obtain reimbursement from Seller for of the costs of its Purchaser Xxxxxx, as provided in (c) below. (b) Purchaser and Seller agree and stipulate, as a matter of contract, that specific performance will be an available remedy for an unexcused failure to close, without regard to whether specific performance would otherwise be available under the laws of the State of Texas regarding remedies. A party claiming injury by a failure to close may immediately file suit under this section in state district court in Tarrant County, Texas, for specific performance and, if the party claiming injury is the Purchaser, for the cost of the Purchaser Xxxxxx, without the need to pursue dispute resolution or provide advance notice as otherwise required by Article 10Principals. (c) Seller acknowledges that in connection with the execution and delivery of this Agreement Purchaser will be entering into Hedging Transactions at current NYMEX strip prices for the quantities of Hydrocarbons set forth in Schedule 3.3(c) (the “Purchaser Xxxxxx”). In the event at Closing all conditions to the obligations of Seller to close have been satisfied or waived and Seller fails or refuses to close, or Purchaser terminates this Agreement pursuant to Section 11.1(f), Seller shall promptly pay to Purchaser (in addition to any other damages that Purchaser may be entitled to receive) the aggregate cost to Purchaser for the termination or unwinding of the Purchaser Xxxxxx.

Remedies for Failure to Close. (a) In the event at Closing all conditions to the obligations of Purchaser to close have been satisfied or waived and Purchaser fails or refuses to close other than for Seller’s default, Seller shall be entitled, as Seller’s sole remedies at law or in equity, either to enforce specific performance of Purchaser’s obligations or to terminate this Agreement pursuant to Article 11. In the event at Closing all conditions to the obligations of Seller to close have been satisfied or waived and If Seller fails or refuses to close other than for Purchaser’s defaultwithout cause or justification authorized in this Agreement, Purchaser and if Buyer is not in default hereunder and is itself ready, willing, and able to close hereunder, Buyer shall be entitledentitled to pursue any and all remedies it may have hereunder, as Purchaser’s sole remediesor at law in equity or otherwise, (1), at its election, either including but not limited to enforce specific performance of Seller’s obligations or to terminate this Agreement pursuant to Article 11, and, in addition, (2) to obtain reimbursement from Seller for of and/or the costs recovery of its Purchaser Xxxxxx, as provided in (c) below. actual damages for the breach hereof by Seller through institution of appropriate litigation; and (b) Purchaser If Buyer fails or refuses to close without cause or justification authorized in this Agreement, and if Seller agree is not in default hereunder and stipulateis itself ready, willing, and able to close hereunder, Seller shall be entitled to pursue any and all remedies it may have hereunder, or at law in equity or otherwise. MISCELLANEOUS All sales, use or other taxes (other than taxes on gross income, net income or gross receipts) and duties, levies or other governmental charges (including recording or similar fees and expenses) incurred by or imposed with respect to the property transfers undertaken pursuant to this Agreement shall be the responsibility of, and shall be paid by, Buyer. After Closing, each Party at the request of the other and without additional consideration, shall execute and deliver, or shall otherwise cause to be executed and delivered, from time to time, such further instruments of conveyance or transfer, and do such further acts, as necessary to more fully and effectively convey and deliver the Assets to Buyer. After the Closing, the parties will cooperate to have all proceeds received attributable to the Assets, to be paid to the proper party hereunder and to have all expenditures, including taxes, attributable to the Assets, to be made by the proper party hereunder. This Agreement, the documents to be executed hereunder, and the exhibits attached hereto constitute the entire agreement between the parties hereto with respect to the subject matter hereof and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written, among the parties with respect to the subject matter hereof. No supplement, amendment, alteration, modification, waiver or termination of this Agreement shall be binding unless executed in writing by the parties hereto and specifically referencing this Agreement. All notices and other communications permitted or required to be delivered to a matter Party pursuant to the terms of contractthis Agreement shall be in writing, that specific performance will shall be an available remedy addressed and delivered to such Party in accordance with the Party’s information set forth below or to such other address or addresses as such Party has designated by notice in writing to the other Party. Each such notice or other communication made in accordance with this Section shall be deemed to have been received by a Party the earlier of (i) if delivered personally or by commercial delivery service, on the day delivered, (ii) if mailed registered or certified mail (return receipt requested), on three (3) next business days after the day on which date upon which the notice or other communication was deposited in the U.S. Mail, (iii) if sent by next day or overnight mail or courier, on the Business Day after the day the notice or other communication was deposited with the U.S. Mail or other recognized national courier service, or (iv) on the Business Day of delivery by facsimile (with acknowledgement of complete transmission) or, when authorized herein, electronic mail transmission (with acknowledgement of complete transmission). If to Seller: _____________________ Attn: ________________ _____________________ _____________________ Email: ________________ If to Buyer: _____________________ Attn: ________________ _____________________ _____________________ Email: ________________ Either Party may by written notice so delivered, change its address for an unexcused failure to close, without notice purposes hereunder. Without regard to whether specific performance would otherwise principles of conflicts of law, this Agreement shall be available under construed and enforced in accordance with and governed by the laws of the State of Texas regarding remedies. A party claiming injury by a failure Colorado applicable to close may immediately file suit under this section in contracts made and to be performed entirely within such state district court in Tarrant County, Texas, for specific performance and, if and the party claiming injury is the Purchaser, for the cost laws of the Purchaser XxxxxxUnited States of America, except that, to the extent that the law of a state in which a portion of the Assets is located (or which is otherwise applicable to a portion of the Assets) necessary governs, the law of such state shall apply as to that portion of the property located in (or otherwise subject to the laws of) such state. This Agreement may be executed in counterparts, all of which are identical and all of which constitute one and the same instrument. It shall not be necessary for Buyer and Sellers to sign the same counterpart. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY NEITHER PARTY SHALL HAVE ANY LIABILITY UNDER THIS AGREEMENT, OR OTHERWISE IN CONNECTION HEREWITH, FOR ANY SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. All representations and warranties made herein by Buyer and Seller shall survive the Closing and the delivery of the conveyance, but only for a period of one (1) year from the Closing, and for such period, and only for such period, Seller shall indemnify, defend and hold harmless Buyer from any claims, liabilities, damages, penalties or causes of action in favor of any person arising from or related to Seller’s breach of its representations and warranties herein. This Agreement may not be assigned, in whole or in part, by either party without the need to pursue dispute resolution express written consent of the other party, which consent may be withheld in its sole and absolute discretion, and any assignment that is made without such consent shall be void. No waiver of any of the provisions of this Agreement shall be deemed or provide advance notice shall constitute a waiver of any other provisions of this Agreement (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly provided. Except as otherwise required provided in this Agreement, each Party shall be solely responsible for all expenses incurred by Article 10. (c) Seller acknowledges that it in connection with the execution transactions contemplated herein (including, without limitation, fees and delivery expenses of this Agreement Purchaser will be entering into Hedging Transactions at current NYMEX strip prices for the quantities of Hydrocarbons set forth in Schedule 3.3(cits own counsel and accountants) (the “Purchaser Xxxxxx”). In the event at Closing all conditions to the obligations of Seller to close have been satisfied or waived and Seller fails or refuses to close, or Purchaser terminates this Agreement pursuant to Section 11.1(f), Seller shall promptly pay to Purchaser (in addition to any other damages that Purchaser may not be entitled to receive) reimbursement therefor from the aggregate cost other Party. All references in this Agreement to Purchaser Exhibits shall be deemed to be references to such Exhibits as the same may be amended and supplemented by mutual agreement of the Parties through and as of the Closing, and all such Exhibits, as amended and supplemented, are hereby incorporated into this Agreement by reference. Any Party successfully pursuing a claim for the termination enforcement of any provision of this Agreement, including, without limitation, agreements of indemnity contained herein or unwinding any of the Purchaser Xxxxxxdocuments to be delivered pursuant hereto, shall be entitled to recover from the unsuccessful Party reasonable attorneys’ fees, court costs, and other expenses incurred by the successful Party in such action.