Changes in Conditions. If, prior to the Closing Date, Seller or Buyer discovers a “material breach” (as hereafter defined) of any of Seller’s representations or warranties in Section 5.01 hereof, the party making the discovery shall deliver written notice to the other party of the breach and Seller will have the right to either cure the untrue representation or warranty or not to cure such breach. Seller shall have ten (10) days after notice of the breach was given in which to give notice to Buyer of the election by Seller to cure or not cure the untrue representation or warranty. Failure of Seller to timely make an election to cure will be deemed an election not to cure. If Seller elects, or is deemed to have elected, not to cure such breach (or if such breach is not curable), Buyer will have the right, as its sole and exclusive remedy, to: (i) terminate this Agreement without any right or claim to damages, and the Option Deposit shall be returned to Buyer; or (ii) waive the breach and, subject to the other terms and conditions of this Agreement, consummate the purchase of the Property without a reduction in the Purchase Price. Buyer’s election between (i) and (ii), above, must be made within ten (10) business days after the receipt of Seller’s notice or deemed notice not to cure such breach, and Buyer’s failure to timely make an election shall constitute Buyer’s deemed termination of this Agreement. For the purposes of this Section 5.04, a “material breach” shall be a breach of Seller’s representations and warranties in Section 5.01 hereof which, individually or when taken together with all other breaches of Seller’s representations and warranties, may reasonably cost $100,000.00 or more, in the aggregate, to cure or correct or may reasonably result in $100,000.00 or more in damages to Buyer.
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Changes in Conditions. If, prior to the Closing Date, Seller Owner or Buyer Optionee discovers a “material breach” (as hereafter defined) of any of SellerOwner’s representations or warranties in Section 5.01 5.1 hereof, the party making the discovery shall deliver written notice to the other party of the breach and Seller Owner will have the right to either cure the untrue representation or warranty or not to cure such breach. Seller Owner shall have ten (10) days after notice of the breach was given in which to give notice to Buyer Optionee of the election by Seller Owner to cure or not cure the untrue representation or warranty. Failure of Seller Owner to timely make an election to cure will be deemed an election not to cure. If Seller Owner elects, or is deemed to have elected, not to cure such breach (or if such breach is not curable), Buyer Optionee will have the right, as its sole and exclusive remedy, to: (i) terminate this Agreement without any right or claim to damages, damages and the Option Deposit shall be returned to BuyerOptionee; or (ii) waive the breach and, subject to the other terms and conditions of this Agreement, consummate the purchase of the Option Property without a reduction in the Purchase Price. BuyerOptionee’s election between (i) and (ii), above, must be made within ten (10) business days after the receipt of SellerOwner’s notice or deemed notice not to cure such breach, and BuyerOptionee’s failure to timely make an election shall constitute BuyerOptionee’s deemed termination of this Agreement. For the purposes of this Section 5.045.4, a “material breach” shall be a breach of SellerOwner’s representations and warranties in Section 5.01 5.1 hereof which, individually or when taken together with all other breaches of SellerOwner’s representations and warranties, may reasonably cost $100,000.00 or more, more in the aggregate, aggregate to cure or correct or may reasonably result in $100,000.00 or more in damages to BuyerOptionee. Notwithstanding anything to the contrary contained herein or in the Purchase and Sale Agreement, in no event shall Owner be liable to Optionee for, or be deemed to be in default hereunder by reason of, any breach of representation or warranty set forth in Section 5.1 which results from any change that occurs after the date hereof and results from an act or an omission that is permitted under the terms of this Agreement (e.g., entering into a new Commercial Lease in accordance with the provisions of Section 7.1(a) hereof), so long as such act or omission is taken in accordance with the terms of this Agreement.
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