Seller Breach. Upon discovery or notice of any defective document in a Trustee Mortgage Loan File or of any breach by a Seller of any of its representations, warranties or covenants under a Sales Agreement, which defect or breach materially and adversely affects the value of any Mortgage Loan or the interest of the Trust therein (it being understood that any such defect or breach shall be deemed to have materially and adversely affected the value of such Mortgage Loan or the interest of the Trust therein if the Trust incurs a loss as a result of such defect or breach), the Custodian or the Trustee shall promptly notify the Master Servicer of such defect or breach and direct the Master Servicer to request that the Seller of such Mortgage Loan cure such defect or breach and, if such Seller does not cure such defect or breach in all material respects within 60 days from the date on which it is notified of such defect or breach, to enforce such Seller's obligation under the Sales Agreement to purchase such Mortgage Loan from the Trustee. In lieu of purchasing any such Mortgage Loan as provided above, if so provided in the Sales Agreement, the Seller may cause such Mortgage Loan to be removed from the Trust (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(h) hereof. Notwithstanding the foregoing, if such defect or breach is or results in a Qualification Defect, such cure, purchase or substitution must take place within 75 days of the Defect Discovery Date. It is understood and agreed that enforcement of the obligation of the Seller to cure, purchase or substitute for any Mortgage Loan as to which a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such defect or breach available to the Trustee on behalf of the Certificateholders; provided, however, that such provision shall not limit the indemnification provisions of Section 8.05 hereof or of any Sales Agreement.
Seller Breach. Seller shall not have failed to perform in any material respect any material obligation or to comply in any material respect with any agreement or covenant of Seller to be performed or complied with by it under this Agreement.
Seller Breach. (i) If Buyer is entitled to terminate this Agreement pursuant to Section 9.1(c) (at a time when Buyer could have terminated this Agreement pursuant to Section 9.1(e)) or Section 9.1(e), in each case where:
(A) either Seller is in Willful Breach of this Agreement, then, in either such event, Buyer shall be entitled to elect, at Buyer’s sole discretion, one of the following two options: (1) seek a decree or order of specific performance in lieu of termination of this Agreement pursuant to the terms of Section 11.19; or (2) terminate this Agreement pursuant to Section 9.1(c) (at a time when Buyer could have terminated this Agreement pursuant to Section 9.1(e)) or Section 9.1(e), in which case Buyer shall promptly receive, no later than three (3) Business Days after termination of this Agreement, an aggregate amount equal to the sum of (x) $20,000,000, plus (y) all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with any proceedings to enforce its rights pursuant to this Section 9.2, plus (z) any interest accrued thereon, at the rate of 10% per annum, from and after the date that is three (3) Business Days after the date of termination until such amount is paid in full (such sum, the “Termination Fee”) from Sellers by wire transfer of immediately available funds to an account or accounts designated in writing by Buyer (it being understood and agreed that in no event shall Sellers be required to pay the Termination Fee on more than one occasion, whether or not the Termination Fee may be payable under more than one provision of this Agreement at the same time or at different times and the occurrence of different events); provided, that the Parties acknowledge and agree that, to the extent Buyer elects in writing to terminate this Agreement and receive the Termination Fee under clause (2), (1) such payment or right to receive such payment or payments (in the manner set forth in this Section 9.2(c)(i)) shall be the sole and exclusive remedy (other than with respect to any liability or obligation resulting from any Fraud prior to termination) against Sellers or any other Person for any and all losses or damages suffered by Buyer or any other Person by virtue of, arising out of, under this or otherwise in connection with this Agreement or any other Transaction Document or the failure of the transactions contemplated by this Agreement to be consummated and, for the avoidance of doubt, in no event will Sellers be required to consummate the ...
Seller Breach. By Buyer if Seller has breached any representation, warranty or covenant contained in this Agreement in any material respect, if Buyer has notified Seller of the breach and the breach has continued without cure for a period of thirty (30) calendar days after the notice of breach; provided that this termination right shall not be available with respect to breaches of representations and warranties unless the individual or aggregate impact of all inaccuracies of such representations and warranties would have a material adverse effect on the Business, taken as a whole, or the ability of Seller to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement.
Seller Breach. Each party hereto shall indemnify, defend, and hold the other harmless against and in respect of any loss, damage, deficiency, or expense (including reasonable attorneys’ fees) resulting from any material misrepresentation, material breach of warranty, or material non-fulfillment of any covenant, agreement, or obligation on the part of the other party under this Agreement.
Seller Breach. In the event the Seller fails to perform any agreement, covenant, representation or warranty under this Mineral Agreement, and Buyer is at that time ready, willing and able to perform all obligations by Buyer to be performed, Buyer may at Buyer’s option: (i) deem this Mineral Agreement terminated, null, void and of no further force or effect, at which txxx Xxxxxx shall have no further rights or liabilities under this Mineral Agreement, or (ii) initiate action for any other remedy at law or in equity permitted under Montana law including, without limitation, an action for specific performance.
Seller Breach. In the event the Sellers breach any of their respective representations, warranties, and covenants contained in this Agreement or in any certificate or instrument delivered in connection with the transactions contemplated hereby that relate to such representations, warranties or covenants, and, provided that the Buyer or the Company provide a written notice of the claim for indemnification against the Sellers in accordance with this Agreement within the applicable survival period set forth in Section 11.1, then each Seller shall jointly and severally indemnify, and hold harmless the Buyer, the Company and their respective Affiliates, officers, directors, employees and agents (collectively, the “Buyer Indemnified Parties”) from and against any and all liabilities, losses, injuries, damages, assessments, judgments, costs and expenses, including without limitation the cost of any investigation or lawsuit and reasonable attorneys’ fees relating thereto and including any diminution in value of the Business (collectively, “Losses”) caused by such breach. In addition, each Seller shall jointly and severally indemnify and hold harmless the Buyer Indemnified Parties from and against any Losses the Buyer Indemnified Parties shall suffer arising out of or resulting, directly or indirectly, from any Excluded Liabilities and any Excluded Assets.
Seller Breach. Seller agrees that in the event any Representative of Seller takes any action which, if taken by Xxxxxx, would constitute a breach of this Section 6.6, Seller shall be deemed to be in breach of this Section 6.6.
Seller Breach. Seller shall have performed and complied in all material respects with any covenant contained in this Agreement required to be performed and complied with by it on or prior to the Closing Date, and Buyer shall have received a certificate signed by an executive officer of Seller and the Company to such effect.
Seller Breach. In the event of a Seller breach including, without limitation, no delivery, late delivery, delivery of nonconforming or defective goods, or breach of warranty, as well as Seller's failure to provide Buyer, upon request, with reasonable assurances of future performance, then, in addition to Buyer's other rights and remedies available under this Purchase Order or at law, upon notice to Seller, Buyer (i) may cancel this Purchase Order, or any part hereof, (ii) require repair or replacement of the Goods, (iii) recover all loss, damage and expense resulting from the breach or other failure, and/or (iv) reject further deliveries of Goods and/or return excess or early deliveries to Seller at Seller’s expense. Seller will also be in breach if the Goods fail quality requirements, including, but not limited to, audits and inspections by Buyer, a third party or the government or any governmental agency. Buyer may immediately terminate or cancel a Purchase Order if Seller becomes insolvent, is adjudicated bankrupt, files a voluntary petition in bankruptcy, makes an assignment for the benefit of creditors, or seeks protection from creditors under any applicable laws.
