Seller Defaults. IF THE TRANSACTION HEREIN PROVIDED SHALL NOT BE CLOSED BY REASON OF SELLER’S DEFAULT UNDER THIS AGREEMENT, THEN PURCHASER SHALL HAVE, AS ITS EXCLUSIVE REMEDIES (ALL OTHER RIGHTS AND/OR REMEDIES, WHETHER AVAILABLE AT LAW OR IN EQUITY, BEING IRREVOCABLY WAIVED) THE RIGHT TO EITHER (A) TERMINATE THIS AGREEMENT (IN WHICH EVENT THE DEPOSIT SHALL BE RETURNED TO PURCHASER, SELLER SHALL PAY TO PURCHASER AN AMOUNT EQUAL TO PURCHASER’S REIMBURSABLE DUE DILIGENCE EXPENSES (AS HEREINAFTER DEFINED) AND NEITHER PARTY HERETO SHALL HAVE ANY FURTHER OBLIGATION OR LIABILITY TO THE OTHER EXCEPT WITH RESPECT TO THOSE PROVISIONS OF THIS AGREEMENT WHICH EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT), PURCHASER HEREBY WAIVING ANY RIGHT OR CLAIM TO DAMAGES FOR SELLER’S BREACH, OR (B) IF SELLER SHALL WILLFULLY FAIL TO TRANSFER THE PROPERTY PURSUANT TO AND IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, SPECIFICALLY ENFORCE SELLER’S OBLIGATION TO TRANSFER THE PROPERTY (IT BEING ACKNOWLEDGED THAT THE REMEDY OF SPECIFIC PERFORMANCE SHALL NOT BE APPLICABLE TO ANY OTHER COVENANT OR AGREEMENT OF SELLER CONTAINED HEREIN); PROVIDED THAT ANY ACTION BY PURCHASER FOR SPECIFIC PERFORMANCE MUST BE FILED, IF AT ALL, WITHIN SIXTY (60) DAYS OF SELLER’S DEFAULT, AND THE FAILURE TO FILE WITHIN SUCH PERIOD SHALL CONSTITUTE A WAIVER BY PURCHASER OF SUCH RIGHT AND REMEDY. IF PURCHASER SHALL NOT HAVE FILED AN ACTION FOR SPECIFIC PERFORMANCE WITHIN THE AFOREMENTIONED TIME PERIOD OR SO NOTIFIED SELLER OF ITS ELECTION TO TERMINATE THIS AGREEMENT, PURCHASER’S SOLE REMEDY SHALL BE TO TERMINATE THIS AGREEMENT IN ACCORDANCE WITH CLAUSE (A) ABOVE. AS USED HEREIN, “PURCHASER’S REIMBURSABLE DUE DILIGENCE EXPENSES” SHALL MEAN AND REFER TO THIRD-PARTY OUT-OF-POCKET EXPENSES ACTUALLY INCURRED BY PURCHASER IN CONNECTION WITH THE NEGOTIATION AND PREPARATION OF THIS AGREEMENT OR INCURRED IN CONNECTION WITH THIS TRANSACTION, INCLUDING ATTORNEYS’ FEES, LOAN APPLICATION FEES, EXISTING LENDER COSTS AND EXPENSES, AND OTHER EXPENSES INCURRED IN CONNECTION WITH PURCHASER’S INVESTIGATIONS UNDER THIS AGREEMENT PRIOR TO THE TERMINATION OF THIS AGREEMENT BY PURCHASER; PROVIDED, HOWEVER, (I) IN NO EVENT SHALL SELLER BE OBLIGATED UNDER THIS AGREEMENT TO REIMBURSE PURCHASER FOR PURCHASER’S REIMBURSABLE DUE DILIGENCE EXPENSES (IN THE AGGREGATE) IN EXCESS OF FIFTY THOUSAND DOLLARS ($50,000) AND (II) SELLER’S OBLIGATION HEREUNDER TO REIMBURSE PURCHASER FOR PURCHASER’S REIMBURSABLE DUE DILIGENCE EXPENSES SHALL RELATE ONLY TO PURC...
Seller Defaults. (i) If the transactions contemplated by this Agreement do not close by reason of the failure of the satisfaction of the conditions benefiting the Purchasers under Section 8.1 and 8.2 in this Agreement (except by reason as described in (ii) of this Section), then the Deposit shall be returned to the Purchasers, and neither Party shall have any further obligation or liability to the other except with respect to those provisions of this Agreement which expressly survive a termination of this Agreement.
(ii) If the transactions contemplated by this Agreement do not close by reason of a breach by the Sellers then, at the Purchasers’ election, (A) the Deposit shall be returned to the Purchasers, and, except as provided in Section 10.3(a)(iii), neither Party shall have any further obligation or liability to the other except with respect to those provisions of this Agreement which expressly survive a termination of this Agreement, or (B) if the Purchasers are ready, willing and able to close (including having immediately available funds to close, and is not otherwise in default), the Purchasers may specifically enforce this Agreement; provided, that any action by the Purchasers for specific performance must be commenced, if at all, within ninety (90) days of the Sellers’ default, the failure of which shall constitute a waiver by the Purchasers of such right and remedy. If the Purchasers shall not have commenced an action for specific performance within the aforementioned time period or so notified the Sellers of the Purchasers’ election to terminate this Agreement, then the Purchasers’ sole remedy shall be to terminate this Agreement in accordance with clause (A) above. In the event the Purchasers commence an equitable action for specific performance, the Sellers hereby acknowledge that the Purchasers do not have an adequate remedy at law and that injunctive relief and specific performance will not constitute a hardship to the Sellers. In addition, in the event the Purchasers prevail under any action under this Section 10.3(a), the Sellers shall pay to the Purchasers all their cost and expenses, including reasonable attorney’s fees incurred in pursuing such action.
(iii) In the event this Agreement is terminated by the Purchasers in accordance with Section 10.1(b) as a result of the Sellers’ intentional breach, willful misrepresentation or fraud, in addition to the Purchasers’ right to receive the return of the Deposit or to seek specific performance as aforesaid,...
Seller Defaults. If Seller shall default hereunder prior to Closing, Purchaser shall be entitled as its sole remedies to either (i) terminate this Agreement and obtain a refund of all of the Xxxxxxx Money (including the Non-Refundable Amount) and reimbursement of its actual out-of-pocket costs incurred in connection with this Agreement in an amount not to exceed Seventy-Five Thousand Dollars ($75,000.00); or (ii) to xxx for specific performance of this Agreement; and Purchaser waives any other rights or remedies at law or equity. Seller shall have no liability after Closing for the breach of any representations, warranties or covenants set forth in this Agreement and any closing documents delivered pursuant hereto except to the extent the loss suffered by Purchaser as a result of such breaches exceeds $50,000 in the aggregate, and in no event shall Seller's liability after Closing for a breach of Seller's representations, warranties and covenants under this Agreement and any closing documents delivered pursuant hereto as a result of such breaches exceed two percent (2%) of the Purchase Price in the aggregate. The foregoing cap, however, shall in no event be applicable to Seller's obligations with respect to prorations, the payment of commissions or the obligations to complete the Outstanding TI Work. For six (6) months following the Closing Date, Seller shall maintain access to funds so as to have the ability to satisfy any post-closing obligations that it may have hereunder.
Seller Defaults. The occurrence of any one or more of the following events shall constitute a Seller Default:
(a) the Seller shall fail to make any payment or deposit to be made by it hereunder when due; or
(b) any representation, warranty, certification or statement made or deemed made by the Seller in this Agreement, by FME KGaA or FMCH under the Parent Agreement, or by the Seller, FME KGaA, FMCH or any other Parent Group Member in any other Transaction Document to which it is a party or in any other document certificate or other writing delivered pursuant hereto or thereto, shall prove to have been incorrect in any material respect when made or deemed made; or
(c) the Seller shall default in the performance of any payment or undertaking (other than those covered by clause (a) above) to be performed or observed under
(i) Section 5.1(a)(iv); provided that, in the case of any failure to provide any such notice relating to a Potential Seller Default that shall have ceased to exist prior to the date such notice was required to have been given under Section 5.1(a)(iv), the failure to give such notice shall not constitute a Seller Default unless a senior officer of the Seller (including, the Treasurer, any Assistant Treasurer, General Counsel or any assistant or associate general counsel of the Seller) shall have known of the occurrence of such Potential Seller Default during such period; or
(ii) any of Sections 5.1(a)(v), 5.1 (a)(x), 5.1 (a)(ix), 5.1(b)(i), 5.1(f), 5.1(g), 5.1(h), 5.1(i), 5.1(k), 5.2(a), 5.2(c), 5.2(d), 5.2(e), 5.2(f), 5.2(g), 5.2(h) or 6.2; or
(iii) Section 5.1(b)(ii), and such default shall continue for 2 Business Days; or
(iv) any other provision hereof and such default in the case of this clause (iv) shall continue for ten (10) days;
(d) failure of the Seller, FME KGaA, FMCH or any Transferring Affiliate to pay when due any amounts due under any agreement to which any such Person is a party and under which any Indebtedness greater than $5,000,000 is governed; or the default by the Seller, FME KGaA, FMCH or any Transferring Affiliate in the performance of any term, provision or condition contained in any agreement to which any such Person is a party and under which any Indebtedness owing by the Seller, FME KGaA, FMCH or any Transferring Affiliate greater than $5,000,000 was created or is governed, regardless of whether such event is an “event of default” or “default” under any such agreement; or any Indebtedness owing by the Seller, FME KGaA, FMCH or any T...
Seller Defaults. For purposes of this Agreement, each of the following shall constitute an event of default by Seller (each, a "Seller Default") hereunder:
(a) Any failure by Seller to deliver to or upon the order of Purchaser any proceeds or payment required to be so delivered under the terms of this Agreement, which failure continues for a period of five (5) Business Days after discovery by Seller or written notice of such failure given to Seller by Purchaser;
(b) Failure on the part of Seller duly to observe or perform in any material respect any other covenant or agreement of Seller set forth in this Agreement, which failure continues for a period of ten (10) Business Days after discovery by Seller or written notice of such failure given to Seller by Purchaser;
(c) The entry of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee in bankruptcy, conservator, receiver, or liquidator for Seller in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceeding or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days;
(d) The consent by Seller to the appointment of a trustee in bankruptcy, conservator, or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceeding of or relating to Seller or relating to all or substantially all of its property; or Seller shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) Any representation, warranty, covenant or statement of Seller made in this Agreement or any certificate, report or other writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made, and within ten (10) Business Days after written notice thereof shall have been given to Seller by Purchaser, the circumstance or condition in respect of which such representation, warranty, covenant or statement was incorrect shall not have been eliminated or otherwise cured to the satisfaction of Purchaser.
Seller Defaults. The following events shall be defaults with respect to Seller (each, a “Seller Default”):
(i) Except as otherwise expressly permitted in this Agreement, Seller terminates this Agreement before the end of the Term;
(ii) Seller is in breach of any representation or warranty or fails to perform any material obligation as set forth in this Agreement and (A) if such breach or failure can be cured within thirty (30) days after Buyer’s notice of such breach or failure and Seller fails to so cure, or (B) Seller fails to commence and pursue said cure within such thirty (30) day period if a longer cure period is needed; and
(iii) A Bankruptcy Event occurs with respect to Seller.
Seller Defaults. If Seller defaults under this Agreement prior to Closing, and Seller fails to cure such default within fifteen (15) calendar days (or such reasonably longer period of time if such default is incapable of cure within such fifteen-day period) after receipt of Buyer's written notice to Seller of the default, Buyer shall, as its sole and exclusive remedy, either: (a) terminate this Agreement and recover the Xxxxxxx Money, or (b) seek specific performance of this Agreement by commencing suit therefor within three (3) months after the date of Seller's default.
Seller Defaults. In the event Seller fails to perform any of Seller’s obligations hereunder, Buyer may either (i) terminate this Agreement by written notice to Seller and receive the return to it of the Deposit with all interest accrued thereon, whereupon all obligations of the parties hereto shall cease and this Agreement shall be void and without recourse to the parties hereto, or (ii) seek specific performance of this Agreement, which action shall be commenced within twenty (20) days of the Time of Closing (if not commenced within such time period, Buyer shall be deemed to have waived any action at law or in equity for any alleged failure of Seller to perform its obligations hereunder).
Seller Defaults. If (i) Seller is in default of any of its obligations hereunder, or (ii) any of Seller’s representations or warranties are untrue in any material respect, or (iii) the Closing otherwise fails to occur (x) by reason of Seller’s failure or refusal to perform its obligations hereunder in a prompt and timely manner, or (y) as provided in Section 8.3 above with respect to failed conditions, and such circumstance in (i), (ii) or (iii) continues for five (5) Business Days after written notice from Buyer to Seller, which written notice shall detail such default, untruth or failure, as applicable, Buyer shall have the right, to elect, as its sole and exclusive remedy, to (a) terminate this Agreement by written notice to Seller, promptly after which the Deposit shall be returned to Buyer, or (b) waive the condition and proceed to close the Transaction, or (c) seek specific performance of this Agreement by Seller. As a condition precedent to Buyer exercising any right it may have to bring an action for specific performance hereunder, Buyer must commence such an action within ninety (90) days after the occurrence of Seller’s default. Buyer agrees that its failure to timely commence such an action for specific performance within such ninety (90) day period shall be deemed a waiver by it of its right to commence an action for specific performance as well as a waiver by it of any right it may have to file or record a notice of lis pendens or notice of pendency of action or similar notice against any portion of the Property.
Seller Defaults. In the event that Seller, on or prior to the Closing Date, shall default in the performance of its obligations hereunder (other than de minimis obligations that do not affect the use or value of the transactions contemplated hereunder in any material respect), Purchaser, as its sole and exclusive remedy and in lieu of all other rights or remedies otherwise provided at law or in equity, may either (a) seek specific performance of Seller’s obligations hereunder, or (b) terminate this Agreement.
