Common use of Default by Seller Clause in Contracts

Default by Seller. Time is of the essence with respect to any Purchase Order. If for any reason Seller anticipates difficulty in complying with any scheduled delivery, or in meeting any of the other requirements of a Purchase Order or any of the terms and conditions of this Agreement, Seller shall immediately notify Buyer in writing. In no event, however, shall any notice provided hereunder be construed as a waiver by Buyer of any delivery schedule or any other rights or remedies provided to Buyer under this Agreement. Should Seller fail to deliver any goods or services pursuant to the schedule(s) set forth in a Purchase Order, or fail to comply with any provision contained in this Agreement or in a Purchase Order, such a failure shall be deemed a default by Seller. In the event of Seller’s default, Buyer may, in its sole discretion: (i) terminate a Purchase Order without further compensation to Seller by providing written notice, (ii) obtain substitute or replacement goods or services without notice to Seller, and/or (iii) thereafter reject any late goods or services tendered by Seller, even if conforming. Seller shall be responsible for all general, consequential, and incidental damages that Buyer may incur as a result of Seller’s failure to meet delivery schedules, including, but not limited to, the cost of obtaining goods from an alternate source and/or expedited or premium freight or transportation costs. Alternatively, Buyer in its sole discretion may extend the delivery schedule and/or waive other deficiencies in Seller’s performance. In either case, Seller shall extend to Buyer an equitable reduction in the Purchase Order price. If Buyer approves a revised delivery date, Seller shall pay any additional transportation charges. The rights and remedies of Buyer provided in this Article 22 shall not be exclusive, nor deemed an election remedies, and are in addition to any other rights and remedies provided under this Agreement or a Purchase Order, or allowed by law. Seller’s warranty, intellectual property, confidentiality, and related obligations under this Agreement, and all of Buyer’s rights and remedies for any breach by Seller, shall survive Buyer’s termination due to Seller’s default.

Default by Seller. Time is of If the essence with respect Seller fails to perform any Purchase Order. If for any reason Seller anticipates difficulty in complying with any scheduled delivery, or in meeting any of the other requirements of a Purchase Order or any of the terms and conditions of this Agreement, Seller shall immediately notify Buyer in writing. In no event, however, shall any notice provided hereunder be construed as a waiver by Buyer of any delivery schedule or any other rights or remedies provided to Buyer under this Agreement. Should Seller fail to deliver any goods or services pursuant to the schedule(s) set forth in a Purchase Order, or fail to comply with any provision obligation contained in this Goodwill Protection Agreement, the Purchase Agreement or any instrument entered into in connection therewith, the Buyer will serve written notice to the Seller specifying the nature of such default and demanding performance. If such default has not been cured within five (5) business days after receipt of such default notice, the Buyer will be entitled to demand specific performance, suspend performance of any obligation under this Goodwill Protection Agreement, the Purchase Agreement or any instrument entered into in connection therewith, or exercise all remedies available at law or in equity. Given the nature of the Pharmacy Business, the parties acknowledge and agree that the goodwill sold by the Seller and purchased by the Buyer cannot be protected if the provisions of this Goodwill Protection Agreement are not strictly enforced. Accordingly, the parties acknowledge and agree that if there is a Purchase Orderbreach by the Seller of the provisions of this Goodwill Protection Agreement, money damages alone will not be adequate and the Buyer will be entitled to an injunction restraining the Seller from violating the provisions of this Goodwill Protection Agreement. In addition to the foregoing and any other remedies available to the Buyer, at law or in equity, in the event the Seller is in default and the Buyer is diligently pursuing a judicial remedy, the periods specified in paragraphs 1.1, 1.2 and 1.3 will be tolled until the conclusion of the judicial action (the “Tolling Period”) and such periods will be automatically extended by the number of days elapsed during the Tolling Period. The remedies provided by this Goodwill Protection Agreement are cumulative and will not exclude any other remedy to which a party might be entitled under this Goodwill Protection Agreement. In the event, a party elects to selectively and successively enforce such party’s rights under this Goodwill Protection Agreement, such a failure shall action will not be deemed a default by Seller. In the event waiver or discharge of Seller’s default, Buyer may, in its sole discretion: (i) terminate a Purchase Order without further compensation to Seller by providing written notice, (ii) obtain substitute or replacement goods or services without notice to Seller, and/or (iii) thereafter reject any late goods or services tendered by Seller, even if conforming. Seller shall be responsible for all general, consequential, and incidental damages that Buyer may incur as a result of Seller’s failure to meet delivery schedules, including, but not limited to, the cost of obtaining goods from an alternate source and/or expedited or premium freight or transportation costs. Alternatively, Buyer in its sole discretion may extend the delivery schedule and/or waive other deficiencies in Seller’s performance. In either case, Seller shall extend to Buyer an equitable reduction in the Purchase Order price. If Buyer approves a revised delivery date, Seller shall pay any additional transportation charges. The rights and remedies of Buyer provided in this Article 22 shall not be exclusive, nor deemed an election remedies, and are in addition to any other rights and remedies provided under this Agreement or a Purchase Order, or allowed by law. Seller’s warranty, intellectual property, confidentiality, and related obligations under this Agreement, and all of Buyer’s rights and remedies for any breach by Seller, shall survive Buyer’s termination due to Seller’s defaultremedy.

Default by Seller. Time If the transaction contemplated hereby is of the essence with respect to any Purchase Order. If for any not consummated by reason Seller anticipates difficulty in complying with any scheduled delivery, or in meeting any of the other requirements of a Purchase Order or any of the terms and conditions of this Agreement, Seller shall immediately notify Buyer in writing. In no event, however, shall any notice provided hereunder be construed as a waiver by Buyer of any delivery schedule or any other rights or remedies provided to Buyer under this Agreement. Should Seller fail to deliver any goods or services pursuant to the schedule(s) set forth in a Purchase Order, or fail to comply with any provision contained in this Agreement or in a Purchase Order, such a failure shall be deemed a default by Seller. In the event of Seller’s defaultbreach or other failure to timely perform all obligations to be performed by Seller under this Contract, then Buyer may, in as its sole discretion: and exclusive remedy (whether at law or in equity), either (i) terminate this Contract and receive the Xxxxxxx Money (including the Option Money), whereupon Seller shall reimburse Buyer for all Buyer’s reasonable third party out-of-pocket expenses (including attorney’s fees, engineering fees, consultant’s fees, environmental fees, and other costs incurred in connection with the potential acquisition of the Property, the inspection and review of the Property and the negotiation of this Contract) up to a Purchase Order without maximum of $150,000 (provided Buyer provides reasonable evidence of such costs to Seller), and neither party shall have any further compensation rights or obligations pursuant to Seller by providing written noticethis Contract, other than as set forth herein with respect to rights or obligations which survive termination, or (ii) obtain substitute or replacement goods or services without notice to Seller, and/or (iii) thereafter reject any late goods or services tendered by Seller, even if conforming. Seller shall be responsible for all general, consequential, and incidental damages that Buyer may incur as a result enforce specific performance of Seller’s failure obligations hereunder; provided, however, if specific performance is not an available remedy because Seller has conveyed the Land or Improvements or any other material portion of the Property to meet delivery schedulesa third party unaffiliated with Buyer, includingthen Buyer may bring suit, but not limited toin law or in equity, the cost of obtaining goods from an alternate source and/or expedited or premium freight or transportation costs. Alternatively, Buyer in its sole discretion may extend the delivery schedule and/or waive other deficiencies in Seller’s performance. In either case, Seller shall extend to Buyer an equitable reduction in the Purchase Order pricefor damages. If Buyer approves a revised delivery datechooses to enforce specific performance of Seller’s obligations, Seller shall pay any additional transportation chargesthen Buyer must commence action to enforce specific performance within 60 days after the occurrence of Seller’s failure. The rights and remedies of Buyer provided in this Article 22 shall not be Section 10(b) are exclusive, nor deemed an election remedies, and are in addition Buyer waives all other remedies (including any right to any other rights and remedies provided under this Agreement or a Purchase Order, or allowed by law. obtain damages from Seller) for Seller’s warranty, intellectual property, confidentiality, and related obligations under failure in performance prior to Closing. Nothing in this Agreement, and all of Section 10(b) limits Buyer’s rights and remedies for any breach by SellerSeller of its obligations after Closing or for any breach of representations and warranties that is discovered by Buyer after Closing. In no case shall Seller ever be liable to Buyer under any statutory, shall survive Buyer’s termination due common law, equitable or other theory of law, either prior to Seller’s defaultor following the Closing, for any lost rents, profits, “benefit of the bargain,” business opportunities or any form of consequential damage in connection with any claim, liability, demand or cause of action in any way or manner relating to the Property, the condition of the Property, this Contract, or any transaction or matter between the parties contemplated hereunder.

Default by Seller. Time is In the event the Closing and the transactions contemplated hereby do not occur as provided herein by reason of the essence default of Seller, Purchaser may elect, as the sole and exclusive remedy of Purchaser, to (i) terminate this Agreement, receive the Deposit from the Escrow Agent, and in such event Seller shall not have any other liability whatsoever to Purchaser hereunder other than with respect to any Purchase Order. If for any reason Seller anticipates difficulty in complying with any scheduled deliverythe Surviving Termination Obligations, or (ii) enforce specific performance of Seller’s obligation to convey the Property, without adjustment to, or credit against the Purchase Price except as provided for in meeting any this Agreement; provided, however, if Seller’s default hereunder makes specific performance of the Agreement unavailable (i.e., not merely impracticable or inconvenient) because Seller intentionally sold or conveyed the Property to anyone other requirements of a Purchase Order than Purchaser (or any of the terms and conditions its permitted assignee) prior to Closing in breach of this Agreement, then, in addition to the return of the Deposit to Purchaser, Seller shall immediately notify Buyer reimburse Purchaser for all third party costs and expenses actually incurred by Purchaser in writingconnection with this transaction, not to exceed $50,000 in the aggregate, and such return of the Deposit and reimbursement of costs and expenses to Purchaser shall be Purchaser’s sole and exclusive remedies in connection with such default. In no event, however, shall any notice provided hereunder be construed as a waiver by Buyer of any delivery schedule or any other rights or remedies provided to Buyer under this Agreement. Should Seller fail to deliver any goods or services pursuant to the schedule(s) set forth in a Purchase Order, or fail to comply with any provision contained in this Agreement or in a Purchase Order, such a failure Purchaser shall be deemed a default by Seller. In the event of Seller’s default, Buyer may, to have elected to terminate this Agreement (as provided in its sole discretion: subsection (i) terminate a Purchase Order without further compensation above) if Purchaser fails to deliver to Seller by providing written notice of its intent to file a cause of action for specific performance against Seller on or before fifteen (15) days after written notice of termination from Seller or fifteen (15) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action within sixty (ii60) obtain substitute days after the originally scheduled Closing Date. Notwithstanding the foregoing, nothing contained herein shall limit Purchaser’s remedies at law or replacement goods in equity, as to the Surviving Termination Obligations or services without notice Purchaser’s right to Seller, and/or (iii) thereafter reject any late goods or services tendered by Seller, even if conforming. Seller shall be responsible for all general, consequential, recover attorneys’ fees and incidental damages that Buyer may incur expenses as a result of Seller’s failure to meet delivery schedules, including, but not limited to, the cost of obtaining goods from an alternate source and/or expedited or premium freight or transportation costs. Alternatively, Buyer in its sole discretion may extend the delivery schedule and/or waive other deficiencies in Seller’s performance. In either case, Seller shall extend to Buyer an equitable reduction in the Purchase Order price. If Buyer approves a revised delivery date, Seller shall pay any additional transportation charges. The rights and remedies of Buyer provided in this Article 22 shall not be exclusive, nor deemed an election remedies, and are in addition to any other rights and remedies provided under this Agreement or a Purchase Order, or allowed by law. Seller’s warranty, intellectual property, confidentiality, and related obligations under this Agreement, and all of Buyer’s rights and remedies for any breach by Seller, shall survive Buyer’s termination due to Seller’s defaultSection 16.16.

Default by Seller. Time is of the essence with respect to any the Purchase Order. If for any reason Seller anticipates difficulty in complying with any the scheduled delivery, or in meeting any of the other requirements of a Purchase Order or any of the terms and conditions of this Agreement, Seller shall immediately notify Buyer in writing. In no event, however, shall any notice provided hereunder be construed as a waiver by Buyer of any delivery schedule or any other rights or remedies provided to Buyer under this Agreement. Should Seller fail to deliver any goods or services Products pursuant to the schedule(s) set forth in a the Purchase Order, or fail to comply with any provision contained in this Agreement or in a the Purchase Order, such a failure shall be deemed a default by Seller. In the event of Seller’s default, Buyer may, in its sole discretion: (i) terminate a Purchase Order without further compensation to Seller by providing written notice, (ii) obtain substitute or replacement goods or services without notice to Seller, and/or (iii) thereafter reject any late goods or services tendered by Seller, even if conforming. Seller shall be responsible for all general, consequential, and incidental damages that Buyer may incur as a result of Seller’s failure to meet delivery schedules, including, but not limited to, the cost of obtaining goods from an alternate source and/or expedited or premium freight or transportation costs. Alternatively, Buyer in at its sole discretion may extend the delivery schedule and/or waive other deficiencies in Seller’s performance. In either such case, Seller shall extend to Buyer an equitable reduction in the Purchase Order price. If Buyer approves a revised delivery date, Seller shall pay any additional transportation charges. The rights and remedies of Buyer provided in this Article 22 shall not be exclusive, nor deemed an election remedies, and are in addition to any other rights and remedies provided under this Agreement or a Purchase Order, or allowed by law. Seller’s warranty, intellectual property, confidentiality, and related obligations under this Agreement, and all of Buyer’s rights and remedies for any breach by Seller, shall survive Buyer’s termination due to Seller’s default.

Default by Seller. Time If Seller materially defaults on its pre-closing obligations under this Agreement and Seller fails to cure such default within Five (5) Days After receiving written notice of such default, or if such default is not reasonably susceptible of being cured within such Five (5) Day period, then if Seller fails to commence to cure such default within such period (provided the essence with respect Closing shall be extended day-for-day as necessary to any Purchase Orderaccommodate Seller’s cure period), and thereafter diligently prosecute to cure such default, then this Agreement and the escrow may be terminated by Buyer. Buyer shall immediately give written notice of such termination to Escrow Holder and Seller, and Escrow Holder shall return to the parties all documents, instruments and funds (including the Xxxxxxx Money Deposit) to the party depositing the same. The foregoing is Buyer’s sole remedy in the event of an uncured, pre-closing default by Seller. If for any reason Seller anticipates difficulty Buyer elects to terminate this Agreement in complying with any scheduled deliverysuch case, or then, other than as expressly set forth in meeting any of the other requirements of a Purchase Order or any of the terms and conditions of this AgreementSection, Seller and its affiliates shall immediately notify Buyer in writing. In no event, however, shall not have any notice provided hereunder be construed as a waiver by Buyer of any delivery schedule or any other rights or remedies provided further liability whatsoever to Buyer under this Agreement. Should Seller fail to deliver any goods or services pursuant to the schedule(s) , and, other than as expressly set forth in a Purchase Orderthis Section, Buyer shall be deemed to release Seller and its affiliates from any and all actions, litigation, causes of action, proceedings, charges, claims, costs, damages, demands, rights, defenses, suits, disbursements, expenses (including attorneys’ fees, expert fees, costs of court and expenses incurred), fines, judgments, obligations, liabilities, liens, losses, compensation or penalties of every kind and nature whatsoever, known or unknown, foreseen or unforeseen, that may at any time be imposed, incurred, asserted or awarded, including, without limitation, for loss of business or indirect, special, consequential, incidental or exemplary damages, diminution in value of the Property arising from the condition of the Property, or fail lost profits, that Buyer and any person or entity claiming by, through or under Buyer, may now have or hereafter acquire against Seller and/or any Seller’s affiliates, arising from or related to comply with any provision contained in this Agreement or in a Purchase Order, such a failure shall be deemed a default by Seller. In the event of Seller’s default, Buyer may, in its sole discretion: (i) terminate a Purchase Order without further compensation to Seller by providing written notice, (ii) obtain substitute or replacement goods or services without notice to Seller, and/or (iii) thereafter reject any late goods or services tendered by Seller, even if conforming. Seller shall be responsible for all general, consequential, and incidental damages that Buyer may incur as a result of Seller’s failure to meet delivery schedules, including, but not limited to, the cost of obtaining goods from an alternate source and/or expedited or premium freight or transportation costs. Alternatively, Buyer in its sole discretion may extend the delivery schedule and/or waive other deficiencies in Seller’s performance. In either case, Seller shall extend to Buyer an equitable reduction in the Purchase Order price. If Buyer approves a revised delivery date, Seller shall pay any additional transportation charges. The rights and remedies of Buyer provided in this Article 22 shall not be exclusive, nor deemed an election remedies, and are in addition to any other rights and remedies provided under this Agreement or a Purchase Order, or allowed by law. Seller’s warranty, intellectual property, confidentiality, and related obligations under this Agreement, and all of Buyer’s rights and remedies for any breach by Seller, shall survive Buyer’s termination due to Seller’s defaultProperty.

Default by Seller. Time is In the event Seller fails or refuses to close pursuant to the terms of this Agreement or fails to consummate the essence with respect to any Purchase Order. If Loan Transaction for any reason Seller anticipates difficulty in complying other than Buyer's failure to perform on terms consistent with any scheduled delivery, or in meeting any of the other requirements of a Purchase Order or any of the terms and conditions of this Agreement, Seller or THC shall immediately notify pay to Buyer, as fixed and liquidated damages (and not as a penalty), the entire Application Fee (as defined in the Loan Term Sheet) plus $500,000 [the "Seller Default Amount"] as Buyer's sole remedy (hereunder, under the Loan Commitment Letter, the Term Sheet, the Commitment Letter, the Loan Term Sheet and otherwise), on account of either or both of Seller's failure to proceed to Closing or proceed with the Loan Transaction. Upon payment of the Seller Default Amount, this Agreement shall be terminated and neither party shall have any further liability hereunder, except for those liabilities that expressly survive a termination of this Agreement. Without limitation of the foregoing, in no event shall Seller or THC be obligated to pay the Seller Default Amount to Buyer on account of both its failure to proceed to Closing hereunder and to the closing of the Loan Transaction such that the Seller Default Amount would be payable twice (such payment being a one time, aggregate payment on account of Seller's failure to proceed with either or both of the transactions contemplated by this Agreement and the Loan Transaction). Additionally, Seller and THC shall remain obligated to reimburse Buyer for its Expenses (as defined in writing. In no eventthe Commitment Letter) actually incurred, the Transaction Closing Costs and any expenses actually incurred and owing to Buyer pursuant to the Loan Commitment Letter (collectively, "Reimbursement Obligations"); provided, however, shall any notice provided hereunder be construed as a waiver by Buyer of any delivery schedule or any other rights or remedies provided to Buyer under this Agreement. Should that neither Seller fail to deliver any goods or services pursuant to the schedule(s) set forth in a Purchase Order, or fail to comply with any provision contained in this Agreement or in a Purchase Order, such a failure nor THC shall be deemed a default by Sellerobligated to pay any such Reimbursement Obligations more than once. BUYER, THC AND SELLER ACKNOWLEDGE AND AGREE THAT: (1) THE SELLER DEFAULT AMOUNT IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY BUYER AS A RESULT OF THE FAILURE OF CLOSING TO HAVE OCCURRED DUE TO A DEFAULT OF SELLER UNDER THIS AGREEMENT OR OTHERWISE OR A FAILURE OF SELLER TO PROCEED TO CLOSING; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY BUYER AS A RESULT OF SUCH FAILURE TO CLOSE DUE TO A DEFAULT OF SELLER UNDER THIS AGREEMENT OR OTHERWISE WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) SELLER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE SELLER DEFAULT AMOUNT IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF SELLER UNDER THIS AGREEMENT OR OTHERWISE; AND (4) THE SELLER DEFAULT AMOUNT SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGES. In the event of Seller’s defaultany breach, default or failure of performance by or on the part of Seller with respect to any covenant, agreement, representation and warranty or other undertaking that survives Closing, whether such breach, default or failure occurs after Closing or occurs prior to Closing but is first disclosed or discovered after Closing, Buyer mayshall have all of its remedies at law and in equity on account of such breach, in its sole discretion: default or failure of performance (i) terminate a Purchase Order without further compensation to Seller by providing written notice, (ii) obtain substitute or replacement goods or services without notice to Seller, and/or (iii) thereafter reject any late goods or services tendered by Seller, even if conforming. Seller except the foregoing sentence shall not apply and Buyer shall be responsible for all generalprecluded from recovering any such additional amounts from Seller after the termination of this Agreement to the extent Buyer is paid the Seller Default Amount). Notwithstanding anything contained herein to the contrary, consequentialthe right of Buyer to receive, and incidental damages that the receipt by Buyer may incur as a result of Seller’s failure to meet delivery schedules, including, but not limited toof, the cost of obtaining goods from an alternate source and/or expedited Seller Default Amount shall be without limitation upon its right to retain the Good Faith Deposit (as hereinafter defined) pursuant to the Term Sheet, the Commitment Fee (as hereinafter defined) pursuant to the Commitment Letter and any comparable amounts paid by Seller or premium freight THC pursuant to the Loan Term Sheet or transportation costs. Alternatively, Buyer in its sole discretion may extend the delivery schedule and/or waive other deficiencies in Seller’s performance. In either case, Seller shall extend to Buyer an equitable reduction in the Purchase Order price. If Buyer approves a revised delivery date, Seller shall pay any additional transportation charges. The rights and remedies of Buyer provided in this Article 22 shall not be exclusive, nor deemed an election remedies, and are in addition to any other rights and remedies provided under this Agreement or a Purchase Order, or allowed by law. Seller’s warranty, intellectual property, confidentiality, and related obligations under this Agreement, and all of Buyer’s rights and remedies for any breach by Seller, shall survive Buyer’s termination due to Seller’s defaultLoan Commitment Letter.

Default by Seller. Time is In the event the Closing and the transactions contemplated hereby do not occur as herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedy, elect by notice to Seller within ten (10) Business Days following the Scheduled Closing Date, either of the essence following: (a) to terminate this Agreement, in which event Purchaser will receive from the Escrow Agent the Xxxxxxx Money Deposit, together with all interest accrued thereon, whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to any Purchase Order. If for any reason Seller anticipates difficulty in complying with any scheduled deliverythe Termination Surviving Obligations; or (b) enforce specific performance of Seller’s obligation to execute the documents required to convey the Property to Purchaser, or in meeting any it being understood and agreed that the remedy of the other requirements of a Purchase Order or any of the terms and conditions of this Agreement, Seller specific performance shall immediately notify Buyer in writing. In no event, however, shall any notice provided hereunder not be construed as a waiver by Buyer of any delivery schedule or available to enforce any other obligation of Seller hereunder. Purchaser expressly waives its rights or remedies provided to Buyer under this Agreement. Should Seller fail to deliver any goods or services pursuant to the schedule(s) set forth seek damages in a Purchase Order, or fail to comply with any provision contained in this Agreement or in a Purchase Order, such a failure shall be deemed a default by Seller. In the event of Seller’s defaultdefault hereunder. Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money Deposit if Purchaser fails to file suit for specific performance against Seller in Denver District Court on or before forty-five (45) days following the Scheduled Closing Date. Notwithstanding the foregoing, Buyer maySeller and Purchaser agree that in the event that Purchaser is unable to obtain specific performance, then in its sole discretion: (i) terminate a Purchase Order without further compensation such event, Purchaser shall in the alterative have the right to commence an action against Seller by providing written noticefor damages for Seller’s breach and default under this Agreement; provided, however, (ii) obtain substitute or replacement goods or services without notice to Seller, and/or (iii) thereafter reject any late goods or services tendered by Seller, even if conforming. Seller shall be responsible for all general, consequential, and incidental damages that Buyer may incur as a result of Seller’s failure to meet delivery schedules, including, but not limited to, the cost of obtaining goods from an alternate source and/or expedited or premium freight or transportation costs. Alternatively, Buyer in its sole discretion may extend the delivery schedule and/or waive other deficiencies in Seller’s performance. In either case, Seller shall extend to Buyer an equitable reduction in the Purchase Order price. If Buyer approves a revised delivery date, Seller shall pay any additional transportation charges. The rights and remedies of Buyer provided in this Article 22 shall not be exclusive, nor deemed an election remedies, and are in addition to any other rights and remedies provided under this Agreement or a Purchase OrderPurchaser being entitled to receive the prompt return of its Xxxxxxx Money Deposit with interest), or allowed by law. Seller’s warrantyliability for damages shall not exceed the amount of the Xxxxxxx Money Deposit posted with Escrow Agent at such time. Notwithstanding the foregoing, intellectual propertynothing contained in this Section 13.1 will limit Purchaser’s remedies at law, confidentiality, and related obligations under this Agreement, and all in equity or as herein provided in pursuing remedies of Buyer’s rights and remedies for any a breach by Seller, shall survive Buyer’s termination due to Seller’s defaultSeller of any of the Termination Surviving Obligations.

Default by Seller. Time is of the essence with respect to any Purchase Order. If for any reason Seller anticipates difficulty in complying with any scheduled delivery, or in meeting any of the other requirements of a Purchase Order or any of the terms and conditions of this Agreement, Seller shall immediately notify Buyer in writing. In no event, however, shall any notice provided hereunder be construed as a waiver by Buyer of any delivery schedule or any other rights or remedies provided to Buyer under this Agreement. Should Seller fail to deliver any goods or services pursuant to the schedule(s) set forth in a Purchase Order, or fail to comply with any provision contained in this Agreement or in a Purchase Order, such a failure shall be deemed a default by Seller. In the event the Closing and the transactions contemplated hereby do not occur as provided herein by reason of the default of Seller’s default, Buyer mayPurchaser may elect, in its as the sole discretion: and exclusive remedy of Purchaser, to (i) terminate a Purchase Order without further compensation this Agreement and receive the Deposit from the Escrow Agent, and in such event Seller shall not have any liability whatsoever to Seller by providing written notice, Purchaser hereunder other than with respect to the Surviving Termination Obligations or (ii) obtain substitute enforce specific performance of Seller's obligation to convey the Property, without adjustment to, or replacement goods or services without notice credit against, the Purchase Price. If the remedy of specific performance is not available due to Seller's willful sale of the Property during the term of this Agreement to a good xxxxx xxxx fide purchaser for value, and/or (iii) thereafter reject any late goods or services tendered by Seller, even if conforming. Seller shall be responsible for all general, consequential, and incidental damages that Buyer may incur as then in addition to Purchaser's right to receive a result return of Seller’s failure to meet delivery schedules, including, but not limited to, the cost of obtaining goods from an alternate source and/or expedited or premium freight or transportation costs. Alternatively, Buyer in its sole discretion may extend the delivery schedule and/or waive other deficiencies in Seller’s performance. In either case, Seller shall extend to Buyer an equitable reduction in the Purchase Order price. If Buyer approves a revised delivery dateDeposit, Seller shall pay any additional transportation charges. The rights and remedies of Buyer provided in this Article 22 shall not be exclusive, nor deemed to Purchaser an election remedies, and are in addition amount equal to any other rights and remedies provided the difference between the Purchase Price under this Agreement and the purchase price received by Seller from the good xxxxx xxxx fide purchaser for value. Purchaser shall be deemed to have elected to terminate this Agreement (as provided in subsection (i) above) if Purchaser fails to deliver to Seller written notice of its intent to file a cause of action for specific performance against Seller on or a Purchase Orderbefore thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date (or any Closing Date extended by Seller in accordance with the provisions of this Agreement), whichever shall occur first, or allowed having given Seller notice, fails to file a lawsuit asserting such cause of action within sixty (60) days after the originally scheduled Closing Date (or any Closing Date extended by law. Seller’s warranty, intellectual property, confidentiality, and related obligations under Seller in accordance with this Agreement). Notwithstanding the foregoing, and all of Buyer’s rights and nothing contained herein shall limit Purchaser's remedies for any breach by Sellerat law or in equity, shall survive Buyer’s termination due as to Seller’s defaultthe Surviving Termination Obligations.

Default by Seller. Time is In the event that Seller defaults in its obligation to consummate the sale of the essence Sale Interests to Purchaser on the Closing Date in accordance with respect to any Purchase Order. If for any reason Seller anticipates difficulty in complying with any scheduled delivery, or in meeting any of the other requirements of a Purchase Order or any of the terms and conditions of this Agreement, Seller shall immediately notify Buyer in writing. In no eventPurchaser may, howeveras Purchaser’s sole and exclusive remedy, shall any notice provided hereunder be construed as a waiver by Buyer elect either of any delivery schedule or any other rights or remedies provided the following: (a) to Buyer under this Agreement. Should Seller fail to deliver any goods or services pursuant to the schedule(s) set forth in a Purchase Order, or fail to comply with any provision contained in terminate this Agreement or in a Purchase Order, such a failure shall be deemed a default by delivery of notice of termination to Seller. In the event of Seller’s default, Buyer may, in its sole discretion: which event (i) terminate a Purchase Order without further compensation to Seller by providing written noticePurchaser shall receive from the Escrow Agent the Down Payment, and (ii) obtain substitute or replacement goods or services without notice to Seller, and/or (iii) thereafter reject any late goods or services tendered by Seller, even if conforming. Seller Purchaser shall be responsible for all generalentitled to recover from Seller its actual out of pocket third party costs and expenses incurred in connection with the transaction contemplated herein, consequentialwhich costs and expenses shall in no event exceed $1,000,000, whereupon Seller and incidental damages that Buyer may incur as a result of Seller’s failure to meet delivery schedules, including, but not limited to, the cost of obtaining goods from an alternate source and/or expedited Purchaser shall have no further rights or premium freight or transportation costs. Alternatively, Buyer in its sole discretion may extend the delivery schedule and/or waive other deficiencies in Seller’s performance. In either case, Seller shall extend to Buyer an equitable reduction in the Purchase Order price. If Buyer approves a revised delivery date, Seller shall pay any additional transportation charges. The rights and remedies of Buyer provided in this Article 22 shall not be exclusive, nor deemed an election remedies, and are in addition to any other rights and remedies provided under this Agreement or a Purchase Order, or allowed by law. Seller’s warranty, intellectual property, confidentiality, and related obligations under this Agreement, except with respect to the Termination Surviving Obligations; (b) to bring an action against Seller for specific performance of such obligation (and file a lis pendens against the Real Property in connection therewith); or (c) to waive such default and proceed to Closing without adjustment of the Purchase Price; and in any such event, Purchaser hereby waives all other remedies, including any claim against Seller for damages of Buyer’s rights any type or kind including consequential, special, incidental and remedies for any breach by Sellerpunitive damages. Notwithstanding the foregoing, shall survive Buyer’s termination (i) if the remedy of specific performance is not available to Purchaser due to Seller’s defaultdefault under this Agreement during the period prior to the Closing in a manner that precludes Purchaser from acquiring the Sale Interests in accordance with this Agreement, then Purchaser shall have the right to make a claim against Seller for Purchaser’s actual damages (excluding special, indirect, consequential and punitive damages) arising from Seller’s default and (ii) nothing contained in this Section 13.1 shall limit Purchaser’s remedies at law, in equity or as herein provided in the event of a breach by Seller of any of the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after termination. This Section 13.1 shall survive the termination of this Agreement.

Default by Seller. Time If the transaction is of the essence with respect to any Purchase Order. If for any reason Seller anticipates difficulty in complying with any scheduled delivery, or in meeting any of the other requirements of a Purchase Order or any of the terms and conditions of this Agreement, Seller shall immediately notify Buyer in writing. In no event, however, shall any notice provided hereunder be construed not consummated as a waiver by Buyer result of any delivery schedule or any other rights or remedies provided to Buyer under this Agreement. Should Seller fail to deliver any goods or services pursuant to the schedule(s) set forth in a Purchase Order, or fail to comply with any provision contained in this Agreement or in a Purchase Order, such a failure shall be deemed a default by Seller. In the event of Seller’s default, Buyer maythen Buyer, in as its sole discretion: and only remedies hereunder, to the exclusion of all other potential remedies under this Agreement, at law or in equity, may either (i) terminate a Purchase Order without this Agreement by delivery of notice of termination to Seller, whereupon (A) the Exxxxxx Money plus interest accrued thereon shall be immediately returned to Buyer (less the Non-Refundable Payment, which shall be retained by Seller), and (B) Seller shall pay to Buyer its Expense Reimbursement, in which case neither Party shall have any further compensation to Seller by providing written notice, rights or obligations hereunder other than those rights and obligations which expressly survive termination of this Agreement; or (ii) obtain substitute continue this Agreement pending Buyer’s action for specific performance, provided, however, that any such action for specific performance shall be filed and served by Buyer within thirty (30) days after the scheduled Closing Date, it being the intent of the Parties hereto that any failure of Buyer to meet the time deadline set for filing shall be deemed to be Buyer’s election to waive and relinquish any rights to enforce specific performance of this Agreement. In no event shall Seller be liable to Buyer in connection with any breach or replacement goods default on the part of Seller under this Agreement for any incidental, special, exemplary, punitive or services consequential damages, including, without limitation, loss of profits or revenue, interference with business operations, loss of tenants, lenders, investors, buyers, diminution in value of the Property, or inability to use the Property. The foregoing notwithstanding, Buyer shall not be entitled to the Expense Reimbursement unless all of the following have occurred: (x) following Seller’s default but prior to electing to terminate this Agreement Buyer delivers written notice to SellerSeller of its default and Seller is unable to cure such default on or before the date ten (10) days after receipt of such notice, and/or or, if earlier, the date of expiration of the loan commitment under which the Lender Expense has been incurred, provided such commitment does not expire sooner than fifteen (iii15) thereafter reject any late goods days prior to the scheduled Closing Date and (y) Buyer in good faith shall have requested that its lender reimburse Buyer for some or services tendered by Seller, even if conforming. Seller shall be responsible for all general, consequentialof the Lender Expense or provide a credit to Buyer of some or all of such Lender Expense in a subsequent financing, and incidental damages that Buyer’s lender shall have denied such requests, and (z) Buyer may incur elects to terminate this Agreement as a result of Seller’s failure to meet delivery schedulesdefault; provided, includinghowever, but not limited to, if all or any portion of the cost of obtaining goods from an alternate source and/or expedited or premium freight or transportation costs. Alternatively, Buyer in its sole discretion may extend the delivery schedule and/or waive other deficiencies in Seller’s performance. In either case, Seller shall extend Lender Expense is returned to Buyer an equitable reduction in or credited against subsequent financing obtained by Buyer within one (1) year of the Purchase Order price. If Buyer approves a revised delivery date, Seller shall pay any additional transportation charges. The rights and remedies termination of Buyer provided in this Article 22 shall not be exclusive, nor deemed an election remedies, and are in addition to any other rights and remedies provided under this Agreement or a Purchase Order, or allowed by law. Seller’s warranty, intellectual property, confidentiality, and related obligations under this Agreement, and all of Buyer shall reimburse Seller for the amount returned to, or credited to, Buyer. Buyer’s rights and remedies for any breach by Seller, shall survive Buyer’s termination due to Seller’s default.Initials JRS

Default by Seller. Time is In the event the Closing of the essence with respect purchase and sale transaction provided for herein does not occur as herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedy, elect by notice to any Purchase Order. If for any reason Seller anticipates difficulty in complying with any within twenty (20) Business Days following the scheduled deliveryClosing Date, or in meeting any either of the other requirements of a Purchase Order or any of the terms and conditions of following: (a) terminate this Agreement, in which event Purchaser will receive from the Title Company the Exxxxxx Money Deposit and Seller shall immediately notify Buyer pay to Purchaser the lesser of (x) the costs, expenses and other liabilities incurred by Purchaser in writing. In no eventconnection with the transaction contemplated hereby and/or as the result of such termination (including, howeverwithout limitation, shall any notice provided hereunder be construed as a waiver by Buyer of any delivery schedule or any other rights or remedies provided to Buyer under this Agreement. Should Seller fail to deliver any goods or services pursuant to the schedule(s) set forth in a Purchase Ordercosts, or fail to comply with any provision contained in this Agreement or in a Purchase Order, such a failure shall be deemed a default by Seller. In the event of Seller’s default, Buyer may, in its sole discretion: (i) terminate a Purchase Order without further compensation to Seller by providing written notice, (ii) obtain substitute or replacement goods or services without notice to Seller, and/or (iii) thereafter reject any late goods or services tendered by Seller, even if conforming. Seller shall be responsible for all general, consequential, expenses and incidental damages that Buyer may incur liabilities Purchaser incurs as a result of Seller’s failure its inability to meet delivery schedulesperform under any contract as the result of such termination, including, but not limited to, the cost of obtaining goods from an alternate source and/or expedited or premium freight or transportation costs. Alternatively, Buyer in its sole discretion may extend the delivery schedule and/or waive other deficiencies in Seller’s performance. In either case, Seller shall extend to Buyer an equitable reduction in the Purchase Order price. If Buyer approves a revised delivery date, Seller shall pay any additional transportation charges. The rights and remedies of Buyer provided in this Article 22 shall not be exclusive, nor deemed an election remediesattorneys’ fees, and are in addition to any other rights and remedies provided under this Agreement diligence costs) or a Purchase Order, or allowed by law. Seller’s warranty, intellectual property, confidentiality(y) $200,000.00 (the “Purchaser Costs”), and related Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; or (b) seek to enforce specific performance of the Agreement, and in either event, Purchaser hereby waives all other remedies, including without limitation, any claim against Seller for damages of Buyerany type or kind, excluding the Purchaser Costs, but including, without limitation, consequential or punitive damages. Failure of Purchaser to make the foregoing election within the foregoing twenty (20) Business Day period shall be deemed an election by Purchaser to terminate this Agreement and receive from the Title Company the Exxxxxx Money Deposit and the Purchaser Costs, whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s rights and remedies for any at law, in equity or as herein provided in the event of a breach by Seller, shall survive Buyer’s termination due to Seller’s defaultSeller of any of the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after termination.

Default by Seller. Time is (j) If Closing of the essence with respect purchase and sale transaction provided for herein does not occur as herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedies, elect by written notice to any Purchase Order. If for any reason Seller anticipates difficulty in complying with any within five (5) days following the scheduled deliveryClosing Date, or in meeting any of the other requirements of a Purchase Order or any of the terms and conditions of to either (a) terminate this Agreement, in which event Purchaser will receive from the Title Company the Xxxxxxx Money Deposit, whereupon Seller shall immediately notify Buyer in writing. In and Purchaser will have no event, however, shall any notice provided hereunder be construed as a waiver by Buyer of any delivery schedule or any other further rights or remedies provided to Buyer under this Agreement. Should Seller fail to deliver any goods or services pursuant to the schedule(s) set forth in a Purchase Order, or fail to comply with any provision contained in this Agreement or in a Purchase Order, such a failure shall be deemed a default by Seller. In the event of Seller’s default, Buyer may, in its sole discretion: (i) terminate a Purchase Order without further compensation to Seller by providing written notice, (ii) obtain substitute or replacement goods or services without notice to Seller, and/or (iii) thereafter reject any late goods or services tendered by Seller, even if conforming. Seller shall be responsible for all general, consequential, and incidental damages that Buyer may incur as a result of Seller’s failure to meet delivery schedules, including, but not limited to, the cost of obtaining goods from an alternate source and/or expedited or premium freight or transportation costs. Alternatively, Buyer in its sole discretion may extend the delivery schedule and/or waive other deficiencies in Seller’s performance. In either case, Seller shall extend to Buyer an equitable reduction in the Purchase Order price. If Buyer approves a revised delivery date, Seller shall pay any additional transportation charges. The rights and remedies of Buyer provided in this Article 22 shall not be exclusive, nor deemed an election remedies, and are in addition to any other rights and remedies provided under this Agreement or a Purchase Order, or allowed by law. Seller’s warranty, intellectual property, confidentiality, and related obligations under this Agreement, except with respect to the Termination Surviving Obligations, or (b) pursue specific performance of this Agreement, so long as any action or proceeding commenced by Purchaser against Seller shall be filed and served within thirty (30) days of the scheduled Closing Date, and, in either event, Purchaser hereby waives all other remedies, including without limitation, any claim against Seller for damages of Buyerany type or kind including, without limitation, consequential or punitive damages. Unless otherwise expressly required pursuant to this Agreement, in no event shall Seller be obligated to undertake any of the following (A) change the condition of the Property or restore the same after any fire or casualty; (B) expend money or post a bond to remove or insure over anything other than a Must-Cure Matter or to correct any matter shown on a survey of the Property; (C) secure any permit, approval, or consent with respect to the Property or Seller’s rights and conveyance thereof; or (D) expend any money to repair, improve or alter the Improvements or any portion thereof. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies for any at law, in equity or as herein provided in the event of a breach by SellerSeller of any of the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after termination, shall survive Buyer’s termination due subject to Seller’s defaultthe terms and provisions of this Agreement.

Default by Seller. Time is of the essence with respect to any Purchase Order. If for any reason Seller anticipates difficulty in complying with any scheduled delivery, or in meeting any of the other requirements of a Purchase Order or any of the terms and conditions of this Agreement, Seller shall immediately notify Buyer in writing. In no event, however, shall any notice provided hereunder be construed as a waiver by Buyer of any delivery schedule or any other rights or remedies provided to Buyer under this Agreement. Should Seller fail to deliver any goods or services pursuant to the schedule(s) set forth in a Purchase Order, or fail to comply with any provision contained in this Agreement or in a Purchase Order, such a failure shall be deemed a default by Seller. In the event the Closing and the transactions contemplated hereby do not occur as provided herein by reason of the default of Seller’s default, Buyer mayPurchaser may elect, in its as the sole discretion: and exclusive remedy of Purchaser, to (i) terminate a Purchase Order without further compensation this Agreement and receive the Deposit from the Escrow Agent, and in such event Seller shall not have any liability whatsoever to Seller by providing written notice, Purchaser hereunder other than with respect to the Surviving Termination Obligations or (ii) obtain substitute enforce specific performance of Seller’s obligation to convey the Property, without adjustment to, or replacement goods or services without notice to Sellercredit against, and/or the Purchase Price (iii) thereafter reject any late goods or services tendered except as otherwise provided in this Agreement). Notwithstanding the foregoing, if this Agreement is terminated by Seller, even if conforming. Seller shall be responsible for all general, consequential, and incidental damages that Buyer may incur Purchaser as a result of an intentional and material default by Seller, Purchaser shall have the additional right to a reimbursement from Seller of Purchaser’s failure out-of-pocket expenses incurred in connection with the transactions contemplated hereby, not to meet delivery schedules, including, but not limited to, the cost of obtaining goods from an alternate source and/or expedited or premium freight or transportation costsexceed $750,000. Alternatively, Buyer in its sole discretion may extend the delivery schedule and/or waive other deficiencies in Seller’s performance. In either case, Seller Purchaser shall extend be deemed to Buyer an equitable reduction in the Purchase Order price. If Buyer approves a revised delivery date, Seller shall pay any additional transportation charges. The rights and remedies of Buyer have elected to terminate this Agreement (as provided in this Article 22 subsection (i) above) if Purchaser fails to deliver to Seller a Default Notice on or before fifteen (15) days after written notice of termination from Seller or fifteen (15) days after the then scheduled Closing Date, whichever shall not be exclusive, nor deemed an election remedies, and are in addition to any other rights and remedies provided under this Agreement or a Purchase Orderoccur first, or allowed by lawhaving given Seller a Default Notice, fails to file a lawsuit asserting such cause of action within sixty (60) days after the then scheduled Closing Date. SellerNotwithstanding the foregoing, nothing contained herein shall limit Purchaser’s warrantyremedies at law or in equity, intellectual property, confidentiality, and related obligations as to the Surviving Termination Obligations. “Default Notice” shall mean a written notice to Seller stating that Purchaser believes Seller has defaulted under this Agreement, and all of Buyer’s rights and remedies for any breach by Seller, shall survive Buyer’s termination due to Seller’s default.

Default by Seller. Time is If Closing of the essence with respect purchase and sale transaction provided for herein does not occur as herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedies (a) elect by written notice to any Purchase Order. If Seller and the Title Company to extend the Closing for any reason up to five (5) Business Days to allow Seller anticipates difficulty in complying with any to cure such default, (b) elect by written notice to Seller within ten (10) Business Days following the scheduled deliveryor extended Closing Date, or in meeting any of the other requirements of a Purchase Order or any of the terms and conditions of to terminate this Agreement, Seller shall immediately notify Buyer in writing. In no event, however, shall any notice provided hereunder be construed as a waiver by Buyer of any delivery schedule or any other rights or remedies provided to Buyer under this Agreement. Should Seller fail to deliver any goods or services pursuant to which event Purchaser will receive from the schedule(s) set forth in a Purchase Order, or fail to comply with any provision contained in this Agreement or in a Purchase Order, such a failure shall be deemed a default by Seller. In Title Company the event of Seller’s default, Buyer may, in its sole discretion: (i) terminate a Purchase Order without further compensation to Seller by providing written notice, (ii) obtain substitute or replacement goods or services without notice to Seller, and/or (iii) thereafter reject any late goods or services tendered by Seller, even if conforming. Seller shall be responsible for all general, consequential, and incidental damages that Buyer may incur as a result of Seller’s failure to meet delivery schedules, including, but not limited to, the cost of obtaining goods from an alternate source and/or expedited or premium freight or transportation costs. Alternatively, Buyer in its sole discretion may extend the delivery schedule and/or waive other deficiencies in Seller’s performance. In either caseXxxxxxx Money Deposit, Seller shall extend reimburse Purchaser up to Buyer an equitable reduction a maximum of $100,000 for Seller’s actual third party costs in connection with the Purchase Order price. If Buyer approves a revised delivery date, Seller shall pay any additional transportation charges. The rights and remedies of Buyer provided in transaction contemplated by this Article 22 shall not be exclusive, nor deemed an election remediesAgreement, and are in addition to any other Seller and Purchaser will have no further rights and remedies provided under this Agreement or a Purchase Order, or allowed by law. Seller’s warranty, intellectual property, confidentiality, and related obligations under this Agreement, except with respect to the Termination Surviving Obligations, or (c) pursue specific performance of this Agreement, so long as any action or proceeding commenced by Purchaser against Seller shall be filed and served within thirty (30) days of the scheduled Closing Date, and, in either event, Purchaser hereby waives all other remedies, including without limitation, any claim against Seller for damages of Buyerany type or kind including, without limitation, consequential or punitive damages. Unless otherwise expressly required pursuant to this Agreement, in no event shall Seller be obligated to undertake any of the following (i) change the condition of the Property or restore the same after any fire or casualty; (ii) expend money or post a bond to remove or insure over anything other than a Must-Cure Matter or to correct any matter shown on a survey of the Property; (iii) secure any permit, approval, or consent with respect to the Property or Seller’s rights and conveyance thereof; or (iv) expend any money to repair, improve or alter the Improvements or any portion thereof. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies for any at law, in equity or as herein provided in the event of a breach by SellerSeller of any of the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after termination, shall survive Buyer’s termination due subject to Seller’s defaultthe terms and provisions of this Agreement.

Default by Seller. Time is (a) If Closing of the essence with respect purchase and sale transaction provided for herein does not occur as herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedies, elect by written notice to any Purchase Order. If for any reason Seller anticipates difficulty in complying with any within five (5) days following the scheduled deliveryClosing Date, or in meeting any of the other requirements of a Purchase Order or any of the terms and conditions of to either (a) terminate this Agreement, in which event Purchaser will receive from the Title Company the Xxxxxxx Money Deposit, whereupon Seller shall immediately notify Buyer in writing. In and Purchaser will have no event, however, shall any notice provided hereunder be construed as a waiver by Buyer of any delivery schedule or any other further rights or remedies provided to Buyer under this Agreement. Should Seller fail to deliver any goods or services pursuant to the schedule(s) set forth in a Purchase Order, or fail to comply with any provision contained in this Agreement or in a Purchase Order, such a failure shall be deemed a default by Seller. In the event of Seller’s default, Buyer may, in its sole discretion: (i) terminate a Purchase Order without further compensation to Seller by providing written notice, (ii) obtain substitute or replacement goods or services without notice to Seller, and/or (iii) thereafter reject any late goods or services tendered by Seller, even if conforming. Seller shall be responsible for all general, consequential, and incidental damages that Buyer may incur as a result of Seller’s failure to meet delivery schedules, including, but not limited to, the cost of obtaining goods from an alternate source and/or expedited or premium freight or transportation costs. Alternatively, Buyer in its sole discretion may extend the delivery schedule and/or waive other deficiencies in Seller’s performance. In either case, Seller shall extend to Buyer an equitable reduction in the Purchase Order price. If Buyer approves a revised delivery date, Seller shall pay any additional transportation charges. The rights and remedies of Buyer provided in this Article 22 shall not be exclusive, nor deemed an election remedies, and are in addition to any other rights and remedies provided under this Agreement or a Purchase Order, or allowed by law. Seller’s warranty, intellectual property, confidentiality, and related obligations under this Agreement, except with respect to the Termination Surviving Obligations, or (b) pursue specific performance of this Agreement, so long as any action or proceeding commenced by Purchaser against Seller shall be filed and served within forty-five (45) days of the scheduled Closing Date, and, in either event, Purchaser hereby waives all other remedies, including without limitation, any claim against Seller for damages of Buyerany type or kind including, without limitation, consequential or punitive damages. Unless otherwise expressly required pursuant to this Agreement, in no event shall Seller be obligated to undertake any of the following (A) change the condition of the Properties or restore the same after any fire or casualty; (B) expend money or post a bond to remove or insure over anything other than a Must-Cure Matter or to correct any matter shown on a survey of the Properties; (C) secure any permit, approval, or consent with respect to the Properties or Seller’s rights and conveyance thereof; or (D) expend any money to repair, improve or alter the Improvements or any portion thereof. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies for any at Law, in equity or as herein provided in the event of a breach by SellerSeller of any of the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after termination, shall survive Buyer’s termination due subject to Seller’s defaultthe terms and provisions of this Agreement.