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<br />SEC-TIOlS--4~EFATJT.T AND RF,MED~ <br /> <br />4 .1 Notice and Cure Ril2:hts. An event of default hereunder shall not be <br />deemed to have occurred unless the non-defaulting party provides written notice of default to the <br />defaulting-party s;eitiiig forth the nature of the default and the curative actions required, and the <br />defaulting party does not cure such default (a) within three (3) business day of such notice in the <br />event the default is the failure to pay money, or (b) within thirty (30) days of such notice in case <br />of other types of defaults. <br /> <br />4 .2 Remedies. Time is of the essence. Upon an event of default hereunder <br />under any provisions of this Agreement, the non-defaulting party shall be entitled to the <br />following remedies, unless otherwise provided in this Agreement: <br /> <br />a. If Purchaser shall default in its obligation to purchase the Water <br />Assets, Seller shall be entitled to retain all of the Earnest Money. <br />Additionally, if Purchaser does not close the purchase of the Water <br />Assets for any reason, Purchaser shall pay to Seller, in cash or <br />certified funds, $150,000.00 on or before February 15, 2004 (the <br />"Additional Payment"). If Purchaser shall breach any covenant or <br />condition or default in its obligations hereunder, Seller may elect <br />to treat this Agreement as terminated and to retain the Earnest <br />Money and the Additional Payment as liquidated damages. <br />Alternatively, Seller may elect to treat this Agreement as being in <br />full force and effect and shall have the right to an action for <br />specific performance and damages. - <br /> <br />b. If Seller shall breach any covenant or condition or default in its <br />obligations hereunder, Purchaser may elect to treat this Agreement <br />as terminated. Alternatively, Purchaser may elect to treat this <br />Agreement as being in full force and effect and shall have the right <br />to an action for specific performance and damages. <br /> <br />4 .3 Attorney Fees. In the event of any litigation between the parties arising <br />out of this Agreement, the prevailing party shall be reimbursed by and entitled to recover from <br />the other party all reasonable costs and expenses incurred in such proceedings, including <br />reasonable attorney fees and costs. <br /> <br />SECTION 5 - GENERAL PROVISIONS <br /> <br />5 .1 Survival. Seller's representations, agreements and warranties set forth <br />herein, except as they may be fully performed prior to or on the Closing Date, shall not merge <br />into the special warranty deed for the Water Rights, together with the Dry-Up Covenant, the <br />Revegetation Covenant and the Right of Entry or the Assignment of one-half ('h) of Seller's <br />right, title and interest in the Keesee Storage Account in John Martin Reservoir; shall survive the <br /> <br />Page 15 of 29 <br />