Failure of Seller to Perform. If Seller fails in any respect to comply herewith or with any other contracts then existing with Buyer, Buyer may, at its option, to this Order or any such other contract pending compliance by Seller, (a) defer further use of Services, or (b) terminate in accordance with Section 21, in whole or in part, without incurring any liability whatsoever. Buyer’s rights pursuant to this provision shall be in addition to any and all other legal or equitable remedies available to it.
Failure of Seller to Perform. If (i) Seller fails to make any delivery or perform any service in accordance with the specified delivery dates or otherwise fails to comply with the Purchase Order and does not remedy such failure within ten (10) days after receipt of written notice thereof from Buyer, (ii) Seller fails to make progress to such an extent that performance of the Purchase Order is endangered, (iii) any proceedings is filed by or against Seller in bankruptcy or insolvency, or for appointment for the benefit of creditors, or (iv) Seller is in any way in any other breach of the Purchase Order then Buyer may (in addition to any other right or remedy provided by the Purchase Order or by law) terminate all or any part of the Purchase Order by written notice to Seller without any liability. If the Purchase Order is terminated or cancelled by Buyer consistent with this section, Buyer, in addition to any other rights provided in this clause, may require Seller to transfer title and deliver to Buyer: (i) any completed supplies, and (ii) such partially completed supplies and materials, parts, tools, dies, jigs, fixtures, plans, drawings, information, and contract rights as Seller has specifically produced or specifically acquired for the performance of such Purchase Orders as have been terminated. Buyer will pay for the lesser of invoice or current market value of these items and any partial payments made by the Buyer on the terminated Purchase Order will be used to reduce the amount owed by the Buyer to the Seller. ------------------ *** Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *****. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
Failure of Seller to Perform. Except for a willful default by Seller, if Seller is unable for any reason to satisfy the conditions to Closing set forth herein, the sole remedy of Purchaser hereunder shall be the return of the Downpayment and the payment by Seller to Purchaser of the "net cost of title examination" and the cost of updating the survey for the Premises, Purchaser hereby waiving any right or claim for damages or specific performance and the right to file a lis pendens against the Premises. If Purchaser believes that any of the Sellers has wilfully defaulted under any of the three contracts described in Article 19 hereof and if Purchaser elects to commence an action against such selling partnership for specific performance with respect to the particular contract executed by such selling partnership, Purchaser must commence such action, and diligently prosecute the same, against all three of the Sellers with respect to all three of the Properties in one consolidated proceeding. If Purchaser discontinues such action at any time, Purchaser must release all three of the Sellers and their respective Properties, with prejudice, therefrom.
