Common use of Default by Sellers Clause in Contracts

Default by Sellers. (a) If the Closing does not occur due to (i) any representation or warranty of any Seller contained in Articles III and IV, respectively, being inaccurate in any material respect when made or deemed made (without limiting the effect of Section 6.5), or (ii) the failure or inability of any Seller or HdC Parent to perform its obligations hereunder in any material respect, which, in either case, is not cured within fifteen (15) days after notice thereof from Purchaser (which fifteen (15) day period shall, if necessary, automatically extend the Closing Date to the expiration date of such fifteen (15) day period), and if individually or in the aggregate, the Losses incurred by the Purchaser Indemnified Parties resulting from such inaccuracies or nonperformances described in clauses (i) and (ii) of this sentence reasonably would be expected to exceed Five Million Dollars ($5,000,000) (the "Threshold Amount"), so long as all conditions precedent to Sellers' obligations hereunder have been satisfied (other than any conditions precedent which are not satisfied due to the default by any Seller Parties or HdC Parent), then Purchaser, as its sole and exclusive remedy, shall elect either (x) to terminate this Agreement, in which event the parties shall retain their rights to enforce the Inspection Agreement, the Confidentiality Agreement and the provisions of Section 8.6 which expressly survive a termination of this Agreement, the Deposit shall be returned to Purchaser, and all other rights and obligations of the parties hereunder (except those set forth in this clause (x)) shall terminate immediately; or (y) to irrevocably waive such default, nonperformance, inaccuracy or breach and proceed to Closing with a reduction in the Adjusted Gross Purchase Price equal to the reasonably estimated Losses over and above the Deductible, but in no event more than Four Million ($4,000,000); or (z) to commence an action for specific performance; provided, however, that the remedy of specific performance shall be available to Purchaser only in the case of a willful refusal to close by the Seller Parties (including a willful failure to close by Sellers under the CNL Agreement) and in the event Purchaser files a suit for specific performance within forty-five (45) days following the Closing Date, failing which, Purchaser shall be barred from enforcing Sellers' obligations in such manner and shall be deemed to have elected to terminate this Agreement pursuant to clause (x). In the event that Purchaser elects to terminate this Agreement pursuant to clause (x) above, Sellers may elect within two (2) Business Days after receipt of Purchaser's notice to nullify Purchasers' notice of termination by agreeing to reduce the Adjusted Gross Purchase Price by the reasonably estimated Losses over and above the Deductible, whereupon Purchaser shall be obligated to proceed to Closing. Notwithstanding any of the foregoing to the contrary, if and to the extent the Losses referenced in this Section 10.1(a) are attributable solely to a breach by Sellers of any Article III Representations and Warranties, the amount of such Losses shall be applied to reduce the HdC Interest Purchase Price (as opposed to the Adjusted Gross Purchase Price). (b) If (i) any representation or warranty of any Seller contained in Articles III and IV, respectively, shall be inaccurate in any material respect when made or deemed made (without limiting the effect of Section 6.5), or (ii) any Seller or HdC Parent defaults in the performance of any of its obligations under this Agreement which are performable prior to Closing, and if the aggregate Losses incurred by the Purchaser Indemnified Parties resulting from such inaccuracies or nonperformances described in clauses (i) and (ii) of this sentence reasonably would not be expected to exceed the Threshold Amount, then, assuming that all of the other conditions set forth in Section 6.1 have been satisfied, and provided such inaccuracy or such default is not the result of any intentional misconduct on the part of any Seller or the HdC Parent, Purchaser shall be obligated to proceed to Closing with no reduction in the Adjusted Gross Purchase Price or the HdC Interest Purchase Price, and Purchaser's sole and exclusive remedies with respect thereto shall be as provided in Sections 10.3 and 10.4 (with the Losses incurred by the Purchaser Indemnified Parties carried forward and applied against the Deductible with respect to Surviving Claims).

Default by Sellers. (a) If the Closing does shall not occur due to (i) any representation by reason of either or warranty of any Seller contained in Articles III and IV, respectively, being inaccurate in any material respect when made both Sellers’ default under this Agreement or deemed made (without limiting the effect of Section 6.5), or (ii) the failure of satisfaction of the conditions benefiting Buyer under Section 4 above or inability the termination of this Agreement in accordance with Section 4 or Section 6 herein, then the Deposit (less the Independent Consideration, which shall be paid to Sellers) shall be returned to Buyer, and neither party shall have any Seller further obligation or HdC Parent to perform its obligations hereunder in any material respect, which, in either case, is not cured within fifteen (15) days after notice thereof from Purchaser (which fifteen (15) day period shall, if necessary, automatically extend the Closing Date liability to the expiration date of such fifteen (15) day period), and if individually or in the aggregate, the Losses incurred by the Purchaser Indemnified Parties resulting from such inaccuracies or nonperformances described in clauses (i) and (ii) of this sentence reasonably would be expected to exceed Five Million Dollars ($5,000,000) (the "Threshold Amount"), so long as all conditions precedent to Sellers' obligations hereunder have been satisfied other (other than any conditions precedent which are not satisfied due to the default by any Seller Parties or HdC Parent), then Purchaser, as its sole and exclusive remedy, shall elect either (x) to terminate this Agreement, in which event the parties shall retain their rights to enforce the Inspection Agreement, the Confidentiality Agreement and the provisions of Section 8.6 which those obligations that expressly survive a termination of this Agreement, the Deposit shall be returned to Purchaser, and all other rights and obligations of the parties hereunder (except those set forth in this clause (x)) shall terminate immediately; or (y) to irrevocably waive such default, nonperformance, inaccuracy or breach and proceed to Closing with a reduction in the Adjusted Gross Purchase Price equal to the reasonably estimated Losses over and above the Deductible, but in no event more than Four Million ($4,000,000); or (z) to commence an action for specific performance; provided, however, that if the remedy Closing shall not occur by reason of specific performance either or both of Sellers’ default, then Buyer shall be available entitled as its sole and exclusive remedy to Purchaser only in the case of a willful refusal to close by the Seller Parties either (including a willful failure to close by Sellers under the CNL a) specifically enforce this Agreement) and in the event Purchaser files a suit , but an action for specific performance must be commenced within forty-five sixty (4560) days following after the last scheduled Closing DateDate pursuant to the terms of this Agreement or be forever barred, failing which, Purchaser shall be barred from enforcing Sellers' obligations in such manner and shall be deemed to have elected to or (b) terminate this Agreement pursuant and obtain a return of the Deposit (less the Independent Consideration, which shall be paid to clause (xSellers), but no other action, for damages or otherwise, shall be permitted. In the event that Purchaser elects to terminate specific performance is not available and Buyer terminates this Agreement pursuant to clause (x) abovethis Section 9.1, then Sellers may elect within two (2) Business Days after receipt of Purchaser's notice to nullify Purchasers' notice of termination shall reimburse Buyer’s reasonable, actual out-of-pocket fees and expenses incurred by agreeing to reduce the Adjusted Gross Purchase Price by the reasonably estimated Losses over Buyer in connection with its inspection and above the Deductible, whereupon Purchaser shall be obligated to proceed to Closing. Notwithstanding any investigation of the foregoing Properties, including Buyer’s attorneys’ fees and expenses incurred in connection with the negotiation of this Agreement and the Access Agreement, in an aggregate amount not to exceed One Hundred Thousand and No/100 U.S. Dollars ($100,000.00) (the contrary“Pursuit Costs”); provided, however, such Pursuit Costs shall not preclude Buyer from collecting attorneys’ fees in connection with a suit or other proceeding against Sellers pursuant to Section 10.10 hereof if and to Buyer is the extent the Losses referenced in this Section 10.1(a) are attributable solely to a breach by Sellers of any Article III Representations and Warranties, the amount of such Losses shall be applied to reduce the HdC Interest Purchase Price (as opposed to the Adjusted Gross Purchase Price). (b) If (i) any representation or warranty of any Seller contained in Articles III and IV, respectively, shall be inaccurate prevailing party in any material respect when made or deemed made (without limiting the effect of Section 6.5), or (ii) any Seller or HdC Parent defaults in the performance of any of its obligations under this Agreement which are performable prior to Closing, and if the aggregate Losses incurred by the Purchaser Indemnified Parties resulting from such inaccuracies or nonperformances described in clauses (i) and (ii) of this sentence reasonably would not be expected to exceed the Threshold Amount, then, assuming that all of the other conditions set forth in Section 6.1 have been satisfied, and provided such inaccuracy or such default is not the result of any intentional misconduct on the part of any Seller or the HdC Parent, Purchaser shall be obligated to proceed to Closing with no reduction in the Adjusted Gross Purchase Price or the HdC Interest Purchase Price, and Purchaser's sole and exclusive remedies with respect thereto shall be as provided in Sections 10.3 and 10.4 (with the Losses incurred by the Purchaser Indemnified Parties carried forward and applied against the Deductible with respect to Surviving Claims)action.

Default by Sellers. (a) If the Closing does not occur due to (i) any representation or warranty of any Seller contained in Articles III and IV, respectivelyArticle III, being inaccurate in any material respect when made or deemed made (without limiting the effect of Section 6.5), or (ii) the failure or inability of any Seller or HdC Parent to perform its obligations hereunder in any material respect, which, in either case, is not cured within fifteen (15) days after notice thereof from Purchaser (which fifteen (15) day period shall, if necessary, automatically extend the Closing Date to the expiration date of such fifteen (15) day period), and if individually or in the aggregate, the Losses incurred by the Purchaser Indemnified Parties resulting from such inaccuracies or nonperformances described in clauses (i) and (ii) of this sentence reasonably would be expected to exceed Five Million Dollars ($5,000,000) (the "Threshold Amount"), so long as all conditions precedent to Sellers' obligations hereunder have been satisfied (other than any conditions precedent which are not satisfied due to the default by any Seller Parties or HdC ParentSeller), then Purchaser, as its sole and exclusive remedy, shall elect either (x) to terminate this Agreement, in which event the parties shall retain their rights to enforce the Inspection Agreement, the Confidentiality Agreement and the provisions of Section 8.6 which expressly survive a termination of this Agreement, the Deposit shall be returned to Purchaser, and all other rights and obligations of the parties hereunder (except those set forth in this clause (x)) shall terminate immediately; or (y) to irrevocably waive such default, nonperformance, inaccuracy or breach and proceed to Closing with a reduction in the Adjusted Gross HdC Interest Purchase Price equal to the reasonably estimated Losses over and above the Deductible, Deductible (but in no event more than Four Million ($4,000,000); or (z) to commence an action for specific performance; provided, however, that the remedy of specific performance shall be available to Purchaser only in the case of a willful refusal to close by the Seller Parties (including a willful failure to close by Sellers under the CNL Agreement) and in the event Purchaser files a suit for specific performance within forty-five (45) days following the Closing Date, failing which, Purchaser shall be barred from enforcing Sellers' obligations in such manner and shall be deemed to have elected to terminate this Agreement pursuant to clause (x). Notwithstanding anything contained in Section 2.5 to the contrary, SHC shall be an express third party beneficiary of clause (z) of the preceding sentence and shall be entitled to specifically enforce Sellers' obligations as therein provided unless Purchaser has elected either of the remedies set forth in clauses (x) ,(y) or (z) of the preceding sentence, provided Purchaser would otherwise be obligated to close and SHC and Purchaser are ready, willing and able to close under the SHC Agreement but for Sellers' willful refusal to close hereunder. In the event that Purchaser elects to terminate this Agreement pursuant to clause (x) above, Sellers may elect within two (2) Business Days after receipt of Purchaser's notice to nullify Purchasers' notice of termination by agreeing to reduce the Adjusted Gross HdC Interest Purchase Price by the reasonably estimated Losses over and above the Deductible, whereupon Purchaser shall be obligated to proceed to Closing. Notwithstanding any of the foregoing to the contrary, if and to the extent the Losses referenced in this Section 10.1(a) are attributable solely to a breach by Sellers of any Article III Representations and Warranties, the amount of such Losses shall be applied to reduce the HdC Interest Purchase Price (as opposed to the Adjusted Gross Purchase Price). (b) If (i) any representation or warranty of any Seller contained in Articles Article III and IV, respectively, shall be inaccurate in any material respect when made or deemed made (without limiting the effect of Section 6.5), or (ii) any Seller or HdC Parent defaults in the performance of any of its obligations under this Agreement in any material respect which are performable prior to Closing, and if the aggregate Losses incurred by the Purchaser Indemnified Parties resulting from such inaccuracies or nonperformances described in clauses (i) and (ii) of this sentence reasonably would not be expected to exceed the Threshold Amount, then, assuming that all of the other conditions set forth in Section 6.1 have been satisfied, and provided such inaccuracy or such default is not the result of any intentional misconduct on the part of any Seller or the HdC ParentSeller, Purchaser shall be obligated to proceed to Closing with no reduction in the Adjusted Gross Purchase Price or the HdC Interest Purchase Price, and Purchaser's sole and exclusive remedies with respect thereto shall be as provided in Sections 10.3 and 10.4 (with the Losses incurred by the Purchaser Indemnified Parties shall be carried forward and applied against the Deductible with respect to Surviving Claims).

Default by Sellers. (a) If In the Closing does not occur event of any default by Sellers in the performance of the terms of this Agreement that would entitle Purchaser to a right to terminate this Agreement due to such default (including Sections 4.5, 8.3, 8.4 or 15.23(c) hereof), Purchaser’s sole remedy will be to elect either to: (i) any representation or warranty terminate this Agreement and receive, in full consideration of any Seller contained Claims Purchaser may have against Sellers, (a) a refund of the Deposit from the Escrow Agent pursuant to Article XIV, plus (b) reimbursement of the amount of all direct third party out-of-pocket costs and expenses actually incurred by Purchaser in Articles III connection with this Agreement, including the fees and IVcosts with respect to attorneys, respectivelyaccountants, being inaccurate in engineers, consultants, due diligence inspections of the Properties, third party reports, Title Company costs and expenses and any material respect when made forfeited commitment, good faith or deemed made (without limiting the effect rate lock deposits or fees paid to a lender and any lender’s legal fees and expenses, but excluding all employee and affiliate compensation, as documented by paid invoices and evidence of Section 6.5)payment, or (ii) the failure or inability of any Seller or HdC Parent to perform its obligations hereunder in any material respectup to, which, in either case, is not cured within fifteen (15) days after notice thereof from Purchaser (which fifteen (15) day period shall, if necessary, automatically extend the Closing Date to the expiration date of such fifteen (15) day period), and if individually or in the aggregate, the Losses incurred by the Purchaser Indemnified Parties resulting from Five Hundred Thousand and 00/100 Dollars ($500,000.00) (collectively, and subject to such inaccuracies or nonperformances described in clauses (i) and limitation, “Purchaser’s Costs”); (ii) of this sentence reasonably would be expected to exceed Five Million Dollars ($5,000,000) (the "Threshold Amount"), so long as all conditions precedent to Sellers' obligations hereunder have been satisfied (other than any conditions precedent which are not satisfied due to waive the default by any Seller Parties or HdC Parent), then Purchaser, as its sole Sellers and exclusive remedy, shall elect either (x) to terminate close the transaction contemplated by this Agreement, in which event Agreement notwithstanding the parties shall retain their rights to enforce the Inspection Agreement, the Confidentiality Agreement and the provisions of Section 8.6 which expressly survive a termination of this Agreement, the Deposit shall be returned to Purchaser, and all other rights and obligations of the parties hereunder (except those set forth in this clause (x)) shall terminate immediatelydefault by Sellers; or (yiii) commence within sixty (60) days of the date the Closing was to irrevocably waive such default, nonperformance, inaccuracy or breach have occurred and proceed to Closing with a reduction diligently prosecute an action in the Adjusted Gross Purchase Price equal to the reasonably estimated Losses over and above the Deductible, but in no event more than Four Million ($4,000,000); or (z) to commence an action for nature of specific performance; provided, however, that the remedy of specific performance shall be available to Purchaser only in the case of a willful refusal to close by the Seller Parties (including a willful failure to close by Sellers under the CNL Agreement) and in the event Purchaser files a suit for specific performance within forty-five (45) days following the Closing Date, failing which, Purchaser shall be barred from enforcing Sellers' obligations in such manner and shall be deemed to have elected to terminate this Agreement pursuant to clause (x). In the event that if Purchaser elects to terminate commence such action and is unsuccessful for any reason other than by reason of Sellers’ conveying any Property to a third party, then Purchaser will receive a refund of the Deposit and Sellers shall pay to Purchaser all of Purchaser’s Costs, and the Sellers’ shall have no further liability to Purchaser under this Agreement pursuant to clause (x) above, Sellers may elect within two (2) Business Days after receipt except those that expressly survive termination of Purchaser's notice to nullify Purchasers' notice of termination by agreeing to reduce the Adjusted Gross Purchase Price by the reasonably estimated Losses over and above the Deductible, whereupon Purchaser shall be obligated to proceed to Closing. Notwithstanding any of the foregoing to the contrary, if and to the extent the Losses referenced in this Section 10.1(a) are attributable solely to a breach by Sellers of any Article III Representations and Warranties, the amount of such Losses shall be applied to reduce the HdC Interest Purchase Price (as opposed to the Adjusted Gross Purchase PriceAgreement). (b) If Notwithstanding the foregoing, in the event (i) any representation or warranty of any Seller contained in Articles III and IV, respectively, Sellers shall be inaccurate in any material respect when made or deemed made (without limiting default of the effect terms of Section 6.5)this Agreement due to Sellers’ failure to sell and convey the Properties to Purchaser in accordance with the terms of this Agreement, or (ii) any Seller Purchaser has performed or HdC Parent defaults in the performance of any of its obligations under this Agreement which are performable prior to Closingsatisfied, and if the aggregate Losses incurred by the Purchaser Indemnified Parties resulting from such inaccuracies or nonperformances described in clauses (i) and (ii) of this sentence reasonably would not be expected to exceed the Threshold Amountas applicable, then, assuming that all of the other conditions to Sellers’ obligation to sell as set forth in Section 6.1 4.2 hereof and has sent prompt written notice of such performance and its readiness and willingness to close the transaction contemplated by this Agreement to Sellers, (iii) Purchaser shall have been satisfiedcommenced within sixty (60) days of the date the Closing was to have occurred (and shall be diligently prosecuting) an action in the nature of specific performance, and provided (iv) such inaccuracy or such default action in the nature of specific performance is not the an available remedy as a result of any intentional misconduct on Sellers’ transfer of the part Properties to a third party other than Purchaser (or its Affiliated Entity(ies)), then Purchaser will receive a refund of any Seller or the HdC ParentDeposit, Sellers shall pay to Purchaser shall be obligated to proceed to Closing with no reduction in the Adjusted Gross Purchase Price or the HdC Interest Purchase Priceall of Purchaser’s Costs, and Sellers shall pay to Purchaser a liquidated damages payment equal to Three Million Five Hundred Thousand Dollars and No/100 ($3,500,000.00) (“LD Payment”) as liquidated damages. It is agreed between Sellers and Purchaser that the actual damages to Purchaser as a result of this default by Sellers are impractical to ascertain, and the return of the Deposit plus payment of Purchaser's sole ’s Costs and exclusive remedies with respect thereto shall be as provided in Sections 10.3 and 10.4 the LD Payment is a reasonable estimate thereof. (with the Losses incurred by the Purchaser Indemnified Parties carried forward and applied against the Deductible with respect to Surviving Claimsc) NOTWITHSTANDING THE FOREGOING, PURCHASER SHALL RETAIN ALL OF ITS OTHER RIGHTS PURSUANT TO THIS AGREEMENT AND ANY CLOSING DOCUMENTS, AND, EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, NOTHING CONTAINED IN THIS SECTION 12.2, WILL LIMIT THE LIABILITY OF SELLERS UNDER (I) ANY INDEMNITY PROVIDED BY SELLERS UNDER THIS AGREEMENT OR ANY OF THE CLOSING DOCUMENTS EXECUTED AND DELIVERED TO PURCHASER PURSUANT TO THE TERMS OF THIS AGREEMENT, OR (II) ANY ACTIONS COMMENCED AFTER CLOSING WITH RESPECT TO ANY OBLIGATION OR REPRESENTATION OF EITHER SELLERS OR PURCHASER WHICH, BY THE TERMS OF THIS AGREEMENT SURVIVES CLOSING, INCLUDING, BUT NOT LIMITED TO, PROVISIONS REGARDING CONFIDENTIALITY AND PAYMENT OF BROKERAGE FEES (IT BEING AGREED THAT SELLERS’ LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED AS PROVIDED IN SECTIONS 15.16 AND 15.23). UNDER NO CIRCUMSTANCES WILL PURCHASER HAVE AVAILABLE TO IT AN ACTION AT LAW OR OTHERWISE FOR DAMAGES, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN THE CLOSING DOCUMENTS.