betts, truth be told, that's a pretty vague provision. I'm not too worried about "good faith." I am more worried about "best effort."
My worry is somewhat mitigated by the fact that "Buyer" has "sole discretion" over whatever process he should employ.
I don't see a likely construction of this to mean that if "Buyer" were to advance a proposal.. say.. in the Washington Legislature, spending lots of money on lobbyists, etc., only to be rebuffed, that if he has six-months remaining on the deal, he has to think of some other way to keep those negotiation wheels spinning, lest he be in default.
Even so, I still have a hard time seeing Section 5.3 as being material.
A little black letter law here, it's the Restatement, not the law in Washington, but it might be the law in Washington, and likely is:
Quote:
The Restatement (Second) of Contracts lists the following criteria to determine whether a specific failure constitutes a breach:
In determining whether a failure to render or to offer performance is material, the following circumstances are significant: (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.
American Law Institute, Restatement (Second) of Contracts § 241 (1981)
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Here, I have a problem with Schultz succeeding on (a) -- he hasn't been damaged, he has his money, that could be all she wrote. On (b), how do we compensate Schultz -- he has been paid a huge premium for a team he wanted to sell. What benefit does he get from Bennett continuing on a path of negotiation which, if you'll read what folks in Seattle were saying while this was going on, would have been futile anyhow? Similar arguments can be made throughout that definition.
I think Schultz' legal team has to clearly lay out what benefit of the bargain Schultz is being denied by Bennett's arguably early cessation of negotiations. I think they also have to lay out exactly what avenues Bennett might have/should have explored which would ultimately have yielded something along the lines of what Schultz was looking for from Seattle in the first place.
Ultimately, I don't think the fact that the PBC was discussing the fact that they wanted out of Seattle to amount to much. If you look at actions, rather than words, I think the case is pretty clear. This suit is a long shot.