Remedies Contract Clauses (5,778)

Remedies. Breach of Seller's Warranties and notice of a Seller's Breach In the event that any warranty made by the Seller is untrue or inaccurate as of the date it is made as set forth in this Agreement, or if the Seller breaches any of its covenants, obligations or agreements set forth in this Agreement (in each case a "Seller's Breach"), the Seller shall be given for a period of three (3) months after due notification by the Buyer the opportunity to factually remedy (restitution in kind; Naturalrestitut...ion) the relevant Seller's Breach. If and to the extent that within such three months' period upon due notification by the Buyer, the Seller fails to achieve factual remediation or curing of a Seller's Breach, or factual remediation or curing of a Seller's Breach is impossible, or the Seller finally refuses (ernsthaft und endgültig verweigern) to factually remedy or cure a Seller's Breach, the Seller shall be obliged to pay damages for non-performance to the Buyer, or, at the election of Buyer, to the Company, (kleiner Schadensersatz in Geld) in accordance with Sections 249 et seq. Civil Code, except that the Seller shall in no event be liable for any internal cost of the Buyer or the Company, any direct or indirect loss of profits (entgangener Gewinn) (whether foreseeable or not) of the Buyer or the Company, any special punitive or exemplary damages, any loss of opportunity, loss of reputation or loss of future earnings of the Buyer or the Company nor for any consequential damages that were unforeseeable and untypical (unvorhersehbare untypische Schadensverläufe) in view of the Seller's Breach. 7.2. Retention of Seller's Warranties Unless otherwise provided for in this Agreement, in particular in clause 8.4.1(a)(iii) of this Agreement, the warranties set forth in clause 6 shall not be affected or deemed waived by reason of any investigation made by or on behalf of the Buyer. 7.3. No Other Remedies All legal remedies, other than those specified in clauses 7 and 8 of this Agreement, in relation to a Seller's Breach are hereby excluded except in the case of wilful misconduct or fraud. In particular, claims for or based on a reduction of the Purchase Price (Minderung), rescission (Rücktritt), other claims for defects according to Section 437 of the Civil Code, culpa in contrahendo (Section 311 of the Civil Code), positive breach of contract (Section 280 of the Civil Code) (Schadensersatz wegen Pflichtverletzung) or frustration of contract (Section 313 of the Civil Code) (Störung der Geschäftsgrundlage) shall be excluded except in the case of fraud (Arglist) or wilful misconduct (Vorsatz). The Buyer shall not be entitled to rescind or terminate this Agreement under any circumstances whatsoever (except if based on fraud (Arglist) or wilful misconduct (Vorsatz)). 7.4. Escrow Account All claims for indemnification of a Seller's Breach shall be satisfied first from any amounts remaining in the Escrow Account then held by the Escrow Agent, until such funds are exhausted or released, and then from the Seller directly, including, at the Buyer's option, by set-off against any Contingent Payment(s) then due to the Seller. View More

Remedies. At the election of the holder hereof, and without notice, the principal balance remaining unpaid under this Note, and all unpaid interest accrued thereon and any other amounts due hereunder, shall be and become immediately due and payable in full upon the occurrence of any Event of Default. Failure to exercise this option shall not constitute a waiver of the right to exercise same in the event of any subsequent Event of Default. No holder hereof shall, by any act of omission or commission, be de...emed to waive any of its rights, remedies or powers hereunder or otherwise unless such waiver is in writing and signed by the holder hereof, and then only to the extent specifically set forth therein. The rights, remedies and powers of the holder hereof, as provided in this Note, the Security Agreement and in all of the other Loan Documents are cumulative and concurrent, and may be pursued singly, successively or together against the Borrower, any Guarantor hereof, the Collateral and any other security given at any time to secure the repayment hereof, all at the sole discretion of the holder hereof. If any suit or action is instituted or attorneys are employed to collect this Note or any part hereof, the Borrower promises and agrees to pay all costs of collection, including reasonable attorneys' fees and court costs. View More

Remedies. At any time and from time to time during the continuance of an Event of Default, Lender shall have the right, but not the obligation to take one or more actions available to it whether under statute, at law or in equity, including without limitation any of the following actions: (i) declare that the ownership of the Pledged Interests shall be immediately vested in Lender and may cause any or all of the Pledged Interests to be registered in its own name or in the name of any nominee or nominees; ...and, upon such declaration, shall be entitled to collect and receive all distributions, payments, and other distributions of any character, declared or paid on any of the Pledged Interests; (ii) vote any or all Pledged Interests of any of the Pledged Interests and give all consents, waivers, and ratifications in respect thereof and otherwise act with respect thereto as though it was the absolute owner thereof; and (iii) sell, assign, transfer, and deliver at any time the whole, or from time to time any part, of the Pledged Interests or any rights or interests therein, at public or private sale or in any other manner, at such prices on such terms as Lender may deem to be in its best interests, and either for cash, on credit, or for future delivery, at the option of Lender, upon five (5) days written notice, which Pledgor agrees is commercially reasonable, addressed to Pledgor at its last address on file with Lender. All proceeds of any sale of any of the Pledged Interests or any right or interests therein, and all distributions, payments, or other distribution received by Lender pursuant to the terms of this Section, shall be applied by Lender to the payment of the Obligations in such manner and order of priority as Lender shall determine, in its sole discretion. The surplus, if any, shall be paid to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct. 4 10. Miscellaneous. a. Governing Law; Jurisdiction. This Agreement shall be governed by and construed according to the laws of the State of California, without giving effect to principles of conflicts of law. b. Entire Agreement. This Agreement, together with the other Loan Documents, sets forth the entire agreement and understanding of the parties with respect to the subject matter hereof, supersedes and rescinds any prior agreements relating to the subject matter hereof, and shall not be subject to any change or modification except by the execution of a written instrument subscribed to by the parties hereto. c. Waiver; Remedies. No course of dealing among Pledgor and Lender nor any failure to exercise, nor any delay in exercising, on the part of Lender, any right, power, or privilege hereunder or under any of the Obligations, shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power, or privilege hereunder or thereunder preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies herein provided and provided under any of the Obligations are cumulative and are in addition to, and not exclusive of, any rights or remedies provided by law, including, without limitation, the rights and remedies of a secured party under the Code. d. Notice. All notices or other written communications hereunder shall be delivered in accordance with Section 19 of the Senior Note. e. Assignment; Binding Nature. This Agreement shall inure to the benefit of Lender and shall be binding upon the heirs, legatees, successor and assigns of Pledgor. f. Recitals. Each of the Recitals set forth at the beginning of this Agreement are true and correct and are incorporated herein by reference. View More

Remedies. Upon the occurrence of an Event of Default and the expiration of any applicable cure periods, the non-defaulting Party shall have all remedies provided by law or equity and as provided in this Agreement. Subsequent to the payment in full of all amounts owed to CIL&D (or its successor and assigns) by KEM's Affiliates under the $4.25 Million Note and $19 Million Note (as those terms are defined in the PA) (the "CIL&D Payment Date") the Parties agree that irreparable damage would occur in the event... that the obligations under Sections 3, 4, 5, 11, 13, 19.4 and 20.12 of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, after the CIL&D Payment Date each of the Parties shall be entitled to seek specific performance of the terms of this Agreement, including an injunction or injunctions to prevent breaches of this Agreement and to enforce the terms and provisions of this Agreement. Subsequent to the CIL&D Payment Date, each of the Parties hereby further waives (a) any defense in any action for specific performance that a remedy at law would be adequate and (b) any requirement under any law to post security as a prerequisite to obtaining equitable relief. View More