Default by Seller Clause Samples
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Default by Seller. (a) In the event that Seller defaults in its obligations under this Agreement before the Closing and such default continues uncured for ten (10) Business Days after written notice from Purchaser to Seller specifying such default (except with respect to such matters as may not practicably be cured within ten (10) Business Days, in which case Seller shall be given a reasonable period of time within which to cure such defaults), Purchaser shall, as its sole and exclusive remedies, (i) at any time before the Closing occurs, Purchaser may elect to terminate this Agreement, without entitlement to any monetary damages, in which case the Deposit will be paid to Purchaser and thereafter neither party shall have any further obligations or liabilities to the other hereunder, except as expressly provided herein, or (ii) only in the case where Seller materially, willfully and in bad faith refuses to convey the Property to Purchaser, despite being required to do so pursuant to the terms of this Agreement, Purchaser shall have a right to seek specific performance of the terms of this Agreement. The parties agree that Purchaser’s remedies are to be limited strictly as set forth herein, and, except as provided in this Agreement, no other remedies or damages of any type whatsoever are to be awarded on account of Seller’s breach and Seller shall have no further liability to Purchaser hereunder.
(b) Supplementing the provisions of Section 8.02(a) above, in the event that Purchaser first discovers after the Closing Date that Seller has made a misrepresentation in Section 7.01 of this Agreement, Purchaser shall have a right to bring an action for any loss, costs or damages related thereto pursuant to and in accordance with the provisions of Section 7.02 hereof and Seller’s liability for any such misrepresentation shall be limited as provided in such Section 7.02.
(c) Purchaser acknowledges that only a portion of the Adjacent Office Park is currently developed and that certain easements, grants and other rights (“New Easement”) may be required by or of Seller in order to develop the remainder of the Adjacent Office Park. If Seller intends to grant such a New Easement which affects the Property that Seller reasonably believes is reasonably necessary for the development of other portions of the Adjacent Office Park, then Seller shall so inform Purchaser in writing. During the Due Diligence Period, Purchaser agrees not to unreasonably withhold its consent to any such New Easement, ...
Default by Seller. If Seller fails to perform any of the covenants of this Agreement, or if Seller otherwise defaults hereunder, Buyer may elect to terminate this Agreement in which event the Deposit shall be returned to Buyer on written demand pursuant to the escrow provisions herein, and because of the difficulty, inconvenience and uncertainty of ascertaining actual damages, no other damages, rights or remedies shall in any case be collectible, enforceable or available to Buyer other than as provided in this paragraph.
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) ▇▇▇ 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. If Seller, without the right to do so and in default of its obligations hereunder, fails to complete Settlement or otherwise 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, shall 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 without any reduction of or credit against the Purchase Price, or (c) sue 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. Purchaser waives and agrees not to claim or assert any other damages or remedies against Seller and 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 right to recover costs and expenses under Section 20(i) below.
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 the sale of the Property as contemplated under this Agreement is not consummated due to Seller’s default, including any failure or refusal of Seller to perform any of its covenants, agreements, obligations, duties and responsibilities under the terms and conditions of the Agreement, and the material breach of any representation or warranty made by Seller under the Agreement, Purchaser shall be entitled, at Purchaser’s option and as Purchaser’s sole remedy for a default by Seller either (a) to terminate the Agreement and receive the return of the Escrow Deposit, after which neither party shall have any rights or obligations under this Agreement, except for obligations hereunder which expressly survive the termination of this Agreement, or (b) to seek specific performance of Seller’s obligation to convey the Property to Purchaser in accordance with, and all other obligations of Seller pursuant to, the terms of this Agreement. If specific performance is not an available remedy, Purchaser may terminate this Agreement and seek to recover its actual damages as a result of such default; provided, however, that in no event shall Seller’s liability exceed the lesser of (i) $250,000.00 or (ii) the actual out-of-pocket expenses incurred by Purchaser and paid (A) to Purchaser’s attorneys in connection with the negotiation of this Agreement, (B) to any prospective lender as an application or commitment fee, and (C) to unrelated and unaffiliated third party consultants in connection with the performance of examinations, inspections and/or investigations pursuant to this Agreement. For purposes of this provision, specific performance shall be considered not available to Purchaser only if Seller has undertaken a willful or intentional act which prevents the Property from being conveyed to Purchaser (including, by way of illustration, conveying the Property to a third party), or a court of competent jurisdiction determines conclusively that Purchaser is entitled to specific performance on the merits of its claim but said court is unable to enforce specific performance due to reasons beyond the control of the court. As a condition precedent to Purchaser’s exercising any right it may have to bring an action for specific performance as the result of Seller’s failure or refusal to perform its obligations hereunder, Purchaser must commence such an action within ninety (90) days after the scheduled Closing Date. Purchaser agrees that its failure to timely commence s...
Default by Seller. In the event that Seller fails to perform any of the material covenants or agreements contained herein which are to be performed by Seller and Seller does not cure such failure by the earlier of (a) September 29, 2017 or (b) within five (5) business days of receipt of written notice thereof from Buyer, Buyer may, at its option and as its exclusive remedy, either (i) terminate this Agreement by giving written notice of termination to Seller whereupon Escrow Holder will return to Buyer the Deposit, in which event (y) Seller shall reimburse Buyer for its actual out-of-pocket third-party costs incurred in connection with this Agreement and the transactions contemplated hereby within thirty (30) days after Seller’s receipt from Buyer of invoices or receipts (provided that in no event shall Seller’s reimbursement obligation pursuant to this Section 16.1 exceed Three Hundred Thousand and No/100 Dollars ($300,000.00)), and (z) both Buyer and Seller will otherwise be relieved of any further obligations or liabilities hereunder, except for those obligations which expressly survive any termination hereof, or (ii) Buyer may seek specific performance of this Agreement. Buyer shall be deemed to have elected to terminate this Agreement pursuant to clause (i) above if Buyer fails to 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 the Closing was to have occurred. Notwithstanding the foregoing to the contrary, in the event the remedy set forth in subpart (ii) above is unavailable (or so impractical as to be deemed unavailable) as a result of the willful act or acts of Seller taken with the intent to frustrate such remedy, then Buyer shall be entitled to pursue all its rights and remedies at law and in equity with respect to such Seller default. Except as specifically set forth in this Section 16.1, Buyer does hereby specifically waive any right to pursue any other remedy at law or equity for such default of Seller, including, without limitation, any right to seek, claim or obtain damages, punitive damages or consequential damages.
Default by Seller. IN THE EVENT THE CLOSE OF ESCROW DOES NOT OCCUR BY REASON OF ANY DEFAULT BY SELLER (OR ANY DEFAULT BY EITHER OF THE OTHER SELLERS UNDER THE OTHER PURCHASE AGREEMENTS), BUYER SHALL BE ENTITLED, AS ITS SOLE AND EXCLUSIVE REMEDY (BUT WITHOUT LIMITING THE AVAILABLE REMEDIES OF BUYER UNDER THE OTHER PURCHASE AGREEMENTS), TO EITHER (1) TERMINATE THIS AGREEMENT AND RECEIVE A REFUND OF THE DEPOSIT AND SELLER SHALL REIMBURSE BUYER FOR ITS REASONABLE OUT-OF-POCKET EXPENSES INCURRED IN CONNECTION WITH THIS AGREEMENT IN AN AMOUNT NOT TO EXCEED THIRTY THOUSAND DOLLARS ($30,000), OR (2) BRING AN ACTION FOR SPECIFIC PERFORMANCE. IF BUYER FAILS TO BRING AN ACTION FOR SPECIFIC PERFORMANCE WITHIN THIRTY (30) DAYS FOLLOWING THE CLOSING DATE, BUYER SHALL BE DEEMED TO HAVE ELECTED TO TERMINATE THIS AGREEMENT AND RECEIVE A REFUND OF THE DEPOSIT AND SUCH OUT-OF-POCKET EXPENSE REIMBURSEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT OR IN ANY EXHIBITS ATTACHED HERETO OR IN ANY DOCUMENTS EXECUTED OR TO BE EXECUTED IN CONNECTION HEREWITH (COLLECTIVELY, INCLUDING THIS AGREEMENT, SAID EXHIBITS AND ALL SUCH DOCUMENTS, THE “PURCHASE DOCUMENTS”), IT IS EXPRESSLY UNDERSTOOD AND AGREED BY AND BETWEEN THE PARTIES HERETO THAT: (I) SELLER SHALL HAVE NO LIABILITY FOR, BUYER AND ITS SUCCESSORS AND ASSIGNS SHALL BE DEEMED TO HAVE WAIVED AND RELEASED SELLER FROM AND AGAINST ANY AND ALL CLAIMS ARISING FROM, AND BUYER AND ITS SUCCESSORS AND ASSIGNS SHALL OTHERWISE HAVE NO RECOURSE AGAINST SELLER WITH RESPECT TO, ANY BREACH OR ALLEGED BREACH BY OR ON THE PART OF SELLER OF ANY REPRESENTATION, WARRANTY, COVENANT, UNDERTAKING, INDEMNITY OR AGREEMENT CONTAINED IN ANY OF THE PURCHASE DOCUMENTS (COLLECTIVELY, “SELLER’S UNDERTAKINGS”) OCCURRING PRIOR TO THE CLOSE OF ESCROW (PROVIDED THAT BUYER HAD ACTUAL KNOWLEDGE OF SUCH BREACH OR ALLEGED BREACH PRIOR TO THE CLOSE OF ESCROW BUT NEVERTHELESS ELECTED TO PROCEED WITH THE CLOSE OF ESCROW), (II) SELLER SHALL HAVE NO LIABILITY FOR, BUYER AND ITS SUCCESSORS AND ASSIGNS SHALL BE DEEMED TO HAVE WAIVED AND RELEASED SELLER FROM AND AGAINST ANY AND ALL CLAIMS ARISING FROM, AND BUYER AND ITS SUCCESSORS AND ASSIGNS SHALL OTHERWISE HAVE NO RECOURSE AGAINST SELLER WITH RESPECT TO, ANY BREACH OR ALLEGED BREACH BY OR ON THE PART OF SELLER OF ANY OF SELLER’S UNDERTAKINGS OCCURRING (A) AFTER THE CLOSE OF ESCROW OR (B) PROVIDED THAT BUYER DID NOT HAVE KNOWLEDGE OF SUCH BREACH OR ALLEGED BREACH PRIOR TO THE CLOSE OF ESCROW, PRIOR TO THE CLOSE OF ESC...
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. 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 ▇▇▇▇▇▇▇ 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.