Default by Seller Clause Samples

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, 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, 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. In the event Seller fails to comply with any of its obligations or conditions hereunder for any reason except for (i) any permissible reasons set forth herein, or (ii) Buyer’s default, Buyer shall have the right to (i) cancel this Agreement and receive the return of the balance of the Deposit, or (ii) seek the specific performance of this Agreement. It is expressly provided, however, that Buyer shall provide Seller with written notice of any default hereunder which notice shall provide Seller with a ten (10) day grace period within which to cure any default of which notice has been given or such longer period of time as is reasonably necessary to cure the default if the nature of the default is such that it cannot be cured within the ten (10) day grace period and Seller is diligently and continuously prosecuting such cure to completion but, in no event, longer than twenty (20) days; provided, however, that notwithstanding the foregoing there shall be no notice requirement or curative opportunity in the event the default is a failure by Seller to close the transaction contemplated by this Agreement on the Closing Date. Notwithstanding anything in this Section 6.1 or in this Agreement, the foregoing provisions of this Section shall not limit Buyer’s right to seek damages against Seller in the event of (i) a willful and knowing breach or misrepresentation by Seller of the representations and warranties made by Seller in this Agreement and/or (ii) a willful bad-faith refusal by Seller to close the transaction contemplated by this Agreement in strict accordance with the terms and conditions. It is expressly acknowledged by Seller that Buyer, in its sole and absolute discretion, may elect to waive any and all defaults by Seller hereunder and proceed to Closing.

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 (i) fails to perform any of the covenants and agreements contained herein to be performed by Seller within the time for performance as specified herein or if Seller is in breach of any representation or warranty of Seller under this Agreement and Seller does not cure such failure or breach within five (5) Business Days after written notice thereof from Purchaser to Seller, or (ii) fails to deliver the required closing deliveries and otherwise close the transactions contemplated hereby on the date of Closing, as required under Section 4.2, Purchaser may elect by written notice to Seller following the occurrence of (i) or (ii) above: (a) To treat this Agreement as terminated, in which case Purchaser shall be entitled to a return of the ▇▇▇▇▇▇▇ Money (and the parties agree that if Seller elected to deliver the Letter of Credit, the Escrow Agent shall return the Letter of Credit to Purchaser, marked “Canceled”) and to recover from Seller the amount of Purchaser’s costs, expenses and other liabilities incurred by Purchaser in connection with the transaction contemplated by this Agreement and whereupon both parties shall be released from all further obligations under this Agreement; or, (b) To treat this Agreement as being in full force and effect and Purchaser shall have the right to an action for specific performance; provided that, if Purchaser elects to seek specific performance, Purchaser may, at any time prior to judgment having been obtained (but not later than six (6) months following delivery of the written notice described above in this Section 6.2), abandon pursuit of specific performance, upon which abandonment Purchaser will be deemed to have elected clause (a). Notwithstanding the foregoing, nothing contained in this Section 6.2 will limit Purchaser's remedies at law, in equity or under this Agreement in the event of any breach by Seller of any obligations which survive Closing or termination of this Agreement, subject, however, to the limitations described in Section 5.3 above.

Default by Seller. If the Seller fails to perform any obligation contained in this Goodwill Protection Agreement, the Purchase Agreement or any instrument entered into in connection therewith, the Buyer will serve written notice to the Seller specifying the nature of such default and demanding performance. If such default has not been cured within five (5) business days after receipt of such default notice, the Buyer will be entitled to demand specific performance, suspend performance of any obligation under this Goodwill Protection Agreement, the Purchase Agreement or any instrument entered into in connection therewith, or exercise all remedies available at law or in equity. Given the nature of the Pharmacy Business, the parties acknowledge and agree that the goodwill sold by the Seller and purchased by the Buyer cannot be protected if the provisions of this Goodwill Protection Agreement are not strictly enforced. Accordingly, the parties acknowledge and agree that if there is a breach by the Seller of the provisions of this Goodwill Protection Agreement, money damages alone will not be adequate and the Buyer will be entitled to an injunction restraining the Seller from violating the provisions of this Goodwill Protection Agreement. In addition to the foregoing and any other remedies available to the Buyer, at law or in equity, in the event the Seller is in default and the Buyer is diligently pursuing a judicial remedy, the periods specified in paragraphs 1.1, 1.2 and 1.3 will be tolled until the conclusion of the judicial action (the “Tolling Period”) and such periods will be automatically extended by the number of days elapsed during the Tolling Period. The remedies provided by this Goodwill Protection Agreement are cumulative and will not exclude any other remedy to which a party might be entitled under this Goodwill Protection Agreement. In the event, a party elects to selectively and successively enforce such party’s rights under this Goodwill Protection Agreement, such action will not be deemed a waiver or discharge of any other remedy.

Default by Seller. If Seller fails to consummate the sale of the Property pursuant to this Agreement for any reason, or upon Seller's failure to perform its obligations hereunder, then, as its exclusive remedies therefor, Purchaser may: (i) terminate this Agreement by notifying Seller thereof in writing, in which case, provided Purchaser is not in default under this Agreement, the Title Company shall return the ▇▇▇▇▇▇▇ Money, including the Extension Deposit, if applicable, to Purchaser, and neither party hereto shall have any further rights or obligations hereunder, except for those which expressly survive the termination of this Agreement; or (ii) enforce specific performance of the obligations of Seller hereunder, and if Purchaser prevails thereunder, Seller shall reimburse Purchaser for all reasonable legal fees, court costs, and all other reasonable costs of such action (“Purchaser’s Costs”) The Purchaser waives all other remedies, including, without limitation, indirect, consequential, punitive, exemplary, extra contractual, speculative or loss of profits or gain damages. Notwithstanding the foregoing, if Seller shall willfully default in its obligation to close the transaction contemplated hereunder on the Closing Date and specific performance shall not be a legally available remedy to Purchaser as a result thereof, then Purchaser shall: (a) have the right to receive a return of the ▇▇▇▇▇▇▇ Money; and (b) be entitled to all damages suffered by Purchaser of any kind whatsoever, including Purchaser’s Costs.

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 ▇▇▇▇▇▇▇ 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.