Common use of Default by Seller and/or Existing Operator Clause in Contracts

Default by Seller and/or Existing Operator. If, on or prior to the Closing, Seller and/or Existing Operator shall have made any representation or warranty herein which shall be untrue or misleading in any material respect, or if Seller and/or Existing Operator shall fail to perform any of the material covenants and agreements contained herein to be performed by Seller and/or Existing Operator, Purchaser may, as its sole and exclusive remedy at law or in equity, elect to either (a) terminate this Agreement and receive a refund of the Deposit (following which no party shall have any rights or obligations hereunder except for the Surviving Obligations) or (b) pursue a suit for specific performance; provided, however, Purchaser must bring an action for specific performance within sixty (60) days after the occurrence of such Seller and/or Existing Operator default.