Default by Seller. Except as specifically provided elsewhere in this Contract, in the event that Seller fails to consummate this Contract or if Seller fails to perform any of Seller's other material obligations hereunder either prior to or at the Closing and such failure or refusal results from any reason other than the termination of this Contract by Purchaser pursuant to a right to terminate expressly set forth in this Contract or Purchaser's failure to perform Purchaser's obligations under this Contract, Purchaser may as its only remedy either (i) terminate this Contract by giving written notice thereof to Seller prior to or at the Closing, in which event Purchaser will be entitled to a return of the Deposit Note, whereupon neither party hereto will have any further rights or obligations hereunder, except (a) that Seller will authorize the Title Company to deliver to Purchaser the Deposit Note and Title Company will deliver the Deposit Note to Purchaser free of any claims by Seller or any other person with respect thereto, (b) that Seller shall reimburse Purchaser for its out of pocket costs associated with the negotiation and preparation of this Agreement and its examination of the Property, including, the fees and disbursements of its counsel, advisers, and agents, and (c) for provisions which survive Closing by their terms or (ii) enforce specific performance of Seller's duties and obligations under this Contract, provided that the right to enforce specific performance shall not require Seller to remove any title encumbrances placed on the Property after the Effective Date or require Seller to perform any covenant beyond the then current ability of Seller. In the event Purchaser fails to file an action for specific performance of this Contract on or before ninety (90) days after the date of such non-performance, Purchaser shall be deemed to have elected to proceed under clause (i) above and shall be deemed to have waived its right to enforce specific performance of this Contract.
Default by Seller. In the event that Seller fails to consummate this Agreement for any reason other than Purchaser’s default (in which event Section 6.1 applies), then Purchaser shall be entitled, as its sole and exclusive remedy, to terminate this Agreement and receive the return of the Xxxxxxx Money, in which event Seller shall be released from any and all liability hereunder ; provided that if the termination resulted from an intentional or willful act of Seller, then Seller shall pay Purchaser its Termination Costs (as hereinafter defined) upon Purchaser’s written notice to Seller that the same have become due Purchaser expressly waives its rights to seek monetary or other damages in the event of Seller’s default hereunder other than as expressly provided in the preceding sentence. Notwithstanding the foregoing, if Purchaser is ready, willing and able to close and Seller is obligated to close pursuant to the terms of this Agreement, then Purchaser shall have the right for file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located, on or before sixty (60) days following the date upon which Closing was to have occurred. Purchaser shall be deemed to have elected to waive such right to seek specific performance if it fails to file suit within such period. As material consideration to Seller’s entering into this Agreement with Purchaser, Purchaser expressly waives any right under statutory or common law or otherwise to record or file a lis pendens or a notice of pendency of action or similar notice against all of any portion of the Property unless all conditions precedent to Seller’s obligation to proceed to Closing have been satisfied and Seller defaults in its obligation to proceed to Closing. “Termination Costs” shall mean those reasonable costs actually incurred by Purchaser in connection with its investigation and efforts to purchase the Property, including, without limitation, actual reasonable fees and costs of counsel and consultants, all of which Termination Costs shall be evidenced by written documentation reasonably acceptable to Seller, but in no event shall the Termination Costs payable by Seller to Purchaser in connection with this Section 6.2 exceed $500,000.
Default by Seller. If Seller, without the right to do so and in default of its obligations hereunder, fails to complete Settlement or otherwise materially breaches any of its representations, warranties or agreements hereunder, which failure is not cured within ten (10) days following receipt of written notice from Purchaser, then Purchaser may elect, as its sole and exclusive remedy, to (i) terminate this Agreement by written notice to Seller and have the Deposit returned to Purchaser as liquidated damages, whereupon Purchaser shall be deemed to have waived any right to recover any other amounts from Seller and the right to pursue any other remedy permitted at law or in equity against Seller, and this Agreement shall have no further force or effect, or (ii) waive the uncured default and proceed to Settlement, or (iii) xxx for the remedy of specific performance to cause Seller to convey title to the Property to Purchaser in accordance with the terms of this Agreement. In no event shall Seller be liable for any damages whatsoever, including, without limitation, consequential, special or punitive damages. As a condition precedent to Purchaser exercising its right to bring an action for specific performance hereunder, Purchaser must commence such an action within ninety (90) days after its receipt of actual knowledge or notice of the occurrence of Seller’s default. Purchaser agrees that its failure to timely commence such an action for specific performance within such ninety (90) day period shall be deemed a waiver by it of its right to commence an action for specific performance. Nothing herein shall limit Purchaser’s remedies under Section 18(i) below.
Default by Seller. In the event the Close of Escrow and the consummation of the transactions herein contemplated do not occur by reason of any default by Seller, Buyer may elect to exercise by written notice to Seller and Escrow Holder and as its sole and exclusive remedy, one (1) of the following remedies: (i) to terminate this Agreement in which event the Xxxxxxx Money shall be returned to Buyer (and Buyer shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expenses), and thereafter neither Seller nor Buyer shall have any further rights, obligations, or liabilities under this Agreement except for the obligations pursuant to this Agreement deemed to expressly survive the termination, or (ii) to enforce, pursue, and seek specific performance of this Agreement within ninety (90) days of such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party out-of-pocket expenses actually incurred by Buyer in connection with the proposed purchase of the Property, including with respect to the negotiation and preparation of this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement prior to the termination of this Agreement by Buyer; provided, however, in no event shall Seller be obligated under this Agreement to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses (in the aggregate) in excess of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default by Seller under this Agreement.
Default by Seller. If Seller, without the right to do so and in default of its obligations hereunder, fails to complete Settlement or otherwise materially breaches any of its representations, warranties or agreements hereunder, which failure is not cured within ten (10) days following receipt of written notice from Purchaser, then Purchaser, as its sole and exclusive remedy, may elect to either: (a) terminate this Agreement and have the Deposit returned to Purchaser as liquidated damages, whereupon Purchaser shall be deemed to have waived any right to recover any other amounts from Seller and the right to pursue any other remedy permitted at law or in equity against Seller, (b) waive the uncured default and proceed to Settlement, or (c) xxx for the remedy of specific performance to cause Seller to convey title to the Property to Purchaser in accordance with the terms of this Agreement. In no event shall Seller be liable for any damages whatsoever including, without limitation, consequential, special or punitive damages. The foregoing shall not limit Purchaser’s remedies under Section 18(i) below.
Default by Seller. Time is of the essence with respect to any Purchase Order. If for any reason Seller anticipates difficulty in complying with any scheduled delivery, or in meeting any of the other requirements of a Purchase Order or any of the terms and conditions of this Agreement, Seller shall immediately notify Buyer in writing. In no event, however, shall any notice provided hereunder be construed as a waiver by Buyer of any delivery schedule or any other rights or remedies provided to Buyer under this Agreement. Should Seller fail to deliver any goods or services pursuant to the schedule(s) set forth in a Purchase Order, or fail to comply with any provision contained in this Agreement or in a Purchase Order, such a failure shall be deemed a default by Seller. In the event of Seller’s default, Buyer may, in its sole discretion: (i) terminate a Purchase Order without further compensation to Seller by providing written notice, (ii) obtain substitute or replacement goods or services without notice to Seller, and/or (iii) thereafter reject any late goods or services tendered by Seller, even if conforming. Seller shall be responsible for all general, consequential, and incidental damages that Buyer may incur as a result of Seller’s failure to meet delivery schedules, including, but not limited to, the cost of obtaining goods from an alternate source and/or expedited or premium freight or transportation costs. Alternatively, Buyer in its sole discretion may extend the delivery schedule and/or waive other deficiencies in Seller’s performance. In either case, Seller shall extend to Buyer an equitable reduction in the Purchase Order price. If Buyer approves a revised delivery date, Seller shall pay any additional transportation charges. The rights and remedies of Buyer provided in this Article 22 shall not be exclusive, nor deemed an election remedies, and are in addition to any other rights and remedies provided under this Agreement or a Purchase Order, or allowed by law. Seller’s warranty, intellectual property, confidentiality, and related obligations under this Agreement, and all of Buyer’s rights and remedies for any breach by Seller, shall survive Buyer’s termination due to Seller’s default.
Default by Seller. If, prior to Closing, Seller fails to keep any of Seller's promises or agreements contained in this Agreement, Buyer, if not in default hereunder, may file a lawsuit for specific performance to require Seller to go through with this Agreement or Buyer may exercise any other remedy to which Buyer is entitled to at law or equity, including canceling this Agreement, if applicable. If Buyer cancels this Agreement because of Seller's default, Seller will repay to Buyer all sums paid by Buyer to Seller or Escrow under this Agreement.
Default by Seller. IF SELLER DEFAULTS IN ITS OBLIGATION TO SELL AND CONVEY THE PROPERTY TO PURCHASER PURSUANT TO THIS CONTRACT AND SUCH DEFAULT SHALL CONTINUE UNCURED FOLLOWING THE FIFTH (5TH) DAY AFTER WRITTEN NOTICE OF SUCH DEFAULT IS GIVEN TO SELLER (HOWEVER SUCH NOTICE PERIOD SHALL NOT EXTEND THE CLOSING DATE), PURCHASER’S SOLE AND EXCLUSIVE REMEDY SHALL BE TO ELECT ONE OF THE FOLLOWING: (A) TO TERMINATE THIS CONTRACT, IN WHICH EVENT PURCHASER SHALL BE ENTITLED TO (I) THE RETURN BY THE ESCROW AGENT TO PURCHASER OF THE XXXXXXX MONEY (INCLUDING THE INDEPENDENT CONTRACT CONSIDERATION), AND (II) IF SUCH DEFAULT IS THE RESULT OF SELLER’S INTENTIONAL BREACH OF THIS CONTRACT FOR THE PURPOSES OF DEPRIVING PURCHASER OF THE BENEFIT OF ITS BARGAIN, PURCHASER SHALL ALSO BE ENTITLED TO THE RECOVERY FROM SELLER OF PURCHASER’S ACTUAL AND REASONABLE OUT-OF-POCKET COSTS AND EXPENSES INCURRED IN CONNECTION WITH ENTERING INTO THIS CONTRACT AND ATTEMPTING TO PURCHASE THE PROPERTY, INCLUDING WITHOUT LIMITATION, DUE DILIGENCE INSPECTIONS PERFORMED BY PURCHASER AND ITS CONSULTANTS, AND LOAN DEPOSITS, APPLICATION AND COMMITMENT FEES, UP TO A MAXIMUM AMOUNT OF FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00) IN THE AGGREGATE, AND AFTER PURCHASER HAS RECOVERED ALL THE FOREGOING NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS EXCEPT FOR PURCHASER’S INDEMNITY OBLIGATIONS HEREUNDER, OR (B) TO BRING A SUIT FOR SPECIFIC PERFORMANCE PROVIDED THAT ANY SUIT FOR SPECIFIC PERFORMANCE MUST BE BROUGHT WITHIN NINETY (90) DAYS OF SELLER’S DEFAULT, TO THE EXTENT PERMITTED BY LAW, PURCHASER WAIVING THE RIGHT TO BRING SUIT AT ANY LATER DATE. PURCHASER WAIVES ANY OTHER RIGHTS OR REMEDIES. PURCHASER AGREES NOT TO FILE A LIS PENDENS OR OTHER SIMILAR NOTICE AGAINST THE PROPERTY EXCEPT IN CONNECTION WITH THE FILING OF A SUIT FOR SPECIFIC PERFORMANCE.
Default by Seller. (a) In the event of an Event of Default by Seller on or before the Closing Date, then, Purchaser may elect, as its sole and exclusive remedy, to either (i) waive such default and seek specific performance of this Agreement, or (ii) terminate this Agreement by delivering written notice to Seller and Title Company and immediately upon termination by Purchaser, Title Company shall pay to Purchaser, as Purchaser’s sole remedy, the Deposit. If Purchaser elects to seek specific performance, such remedy must be elected by Purchaser, and a lawsuit filed by Purchaser, no later than thirty (30) days following the scheduled Closing Date, otherwise Purchaser shall be deemed to have elected the remedy set forth in subsection (ii) of the preceding sentence.
Default by Seller. If Purchaser shall not be in default hereunder and if Seller refuses or fails to consummate the Closing under this Contract other than due to a termination permitted hereunder or a failure of a condition precedent to Seller's obligation to close as set forth in Section 7.2 hereof, Purchaser may, at Purchaser's sole option, as its sole and exclusive remedies, either (a) terminate this Contract in which event neither party shall have any further rights, duties or obligations hereunder except for provisions of this Contract which expressly survive the termination hereof, and Purchaser shall be entitled to a refund of the Xxxxxxx Money Deposit, or (b) enforce specific performance of this Contract. Notwithstanding anything contained in this Section to the contrary, in the event of (x) (i) any breach by Seller of any representation or warranty under this Contract which survives the Closing, and (ii) the Closing occurs under this Contract or (y) any breach by Seller of any indemnity under this Contract which survives the Closing or termination of this Contract, in either the case of (x) or (y), Purchaser shall have any rights and remedies available at law or in equity by reason of such breach, excluding, however, any punitive, speculative or consequential damages or damages for loss of opportunity or lost profit. Except as otherwise provided in this Section 10.2, in no event shall Seller be liable to Purchaser for any damages, including, without limitation, any actual, punitive, speculative or consequential damages or damages for loss of opportunity or lost profit.
