Default by Seller Clause Samples

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. 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, prior to Closing, Seller defaults in performing any of its obligations under this Agreement (other than an immaterial default), and if Seller fails to cure such default within ten (10) Business Days after written notice thereof from Purchaser, and provided that Purchaser has duly and timely performed all of its obligations and is not in default hereunder, Purchaser, as its sole and exclusive remedy, may either (i) terminate this Agreement, in which case the Deposit shall be returned to Purchaser and all other rights and obligations of Seller and Purchaser hereunder (except those set forth herein which expressly survive a termination of this Agreement) shall terminate immediately, (ii) seek specific performance of Seller’s obligations (if Seller’s material default is a failure to convey the Property when obligated to do so pursuant to this Agreement and so long as the Purchaser commences such action within thirty (30) days following the date on which the Closing was to have occurred), or (iii) elect to proceed to Closing. Notwithstanding the preceding sentence, if Seller defaults under this Agreement by selling the Property to a third party other than Purchaser during the term of this Agreement, and if, as the result of such sale, the remedy of specific performance is not available to Purchaser, then Seller agrees to pay Purchaser damages in the amount of Three Million Dollars ($3,000,000). For the avoidance of doubt, each of Seller and Purchaser agrees that the foregoing two sentences set forth the only remedies available to Purchaser in the event of default by Seller under this Agreement and, more particularly, that Purchaser shall not be entitled to bring any claim or action against Seller for damages except as set forth in the immediately preceding sentence. If Purchaser elects to proceed to Closing, Purchaser shall be deemed to have waived any right to bring an action against Seller with respect to such default. From and after the Closing Date, Purchaser shall not have any right to bring any claim or action against Seller with respect to a breach or default by Seller under this Agreement or any other Closing Document or any other matter relating to this Agreement , any Closing Document or the Property, except as expressly set forth in Section 8.3(e). Purchaser shall not be entitled to exercise its remedies under this Section 9.1(b) if Purchaser has exercised its right to terminate this Agreement under Section 5.2(a).

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. In the event the Closing and the transactions contemplated hereby do not occur as herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedy, elect by notice to Seller within ten (10) Business Days following the Scheduled Closing Date, either of the following: (a) terminate this Agreement, in which event Purchaser will receive from the Escrow Agent the ▇▇▇▇▇▇▇ Money Deposit, together with all interest accrued thereon, and reimbursement from Seller of Purchaser’s reasonable out of pocket costs and expenses payable to third parties in connection with this transaction; provided, however, that the reimbursement by Seller to Purchaser under this Agreement shall not exceed One Hundred Seven Thousand Seven Hundred Four Dollars ($107,704) and the aggregate reimbursement by Seller to Purchaser under this Agreement and the Other P&S Agreements shall not exceed Seven Hundred Fifty Thousand Dollars ($750,000) (the “Reimbursement Cap”); whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; or (b) seek to enforce specific performance of Seller’s obligation to execute the documents required to convey the Property to Purchaser, it being understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder. Purchaser expressly waives its rights to seek damages in the event of Seller’s default hereunder. Purchaser shall be deemed to have elected to terminate this Agreement and receive back the ▇▇▇▇▇▇▇ Money Deposit if Purchaser 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 thirty (30) days following the Scheduled Closing Date. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in pursuing remedies of a breach by Seller of any of the Termination Surviving Obligations.

Default by Seller. IF SELLER DEFAULTS PURSUANT TO THIS AGREEMENT BY FAILING TO CONVEY THE LOT TO BUYER IN THE MANNER PROVIDED IN THIS AGREEMENT, BUYER'S SOLE AND EXCLUSIVE REMEDIES ARE TO EITHER: (A) TERMINATE THIS AGREEMENT, IN WHICH EVENT SELLER SHALL NOT BE ENTITLED TO THE DEPOSIT, AND SELLER SHALL PAY ALL OF THE FEES AND COSTS OF ESCROW HOLDER, WHICH SHALL OPERATE TO TERMINATE THIS AGREEMENT AND RELEASE SELLER FROM ANY AND ALL LIABILITY PURSUANT TO THIS AGREEMENT; OR (B) OBTAIN SPECIFIC PERFORMANCE OF THIS AGREEMENT BY SELLER. BUYER SHALL BE DEEMED TO HAVE ELECTED CLAUSE (A) ABOVE IF BUYER FAILS TO FILE SUIT FOR SPECIFIC PERFORMANCE AGAINST SELLER IN A COURT HAVING JURISDICTION IN ORANGE COUNTY, CALIFORNIA, ON OR BEFORE SIXTY (60) DAYS FOLLOWING THE DATE UPON WHICH THE CLOSING WAS TO HAVE OCCURRED. IN ANY ACTION FOR SPECIFIC PERFORMANCE, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER FROM THE OTHER PARTY REASONABLE ATTORNEYS' FEES AND COSTS. THE OBLIGATIONS OF SELLER UNDER THIS AGREEMENT AND UNDER ANY CLOSING DOCUMENTS EXECUTED BY SELLER IN CONNECTION WITH THIS AGREEMENT DO NOT CONSTITUTE THE PERSONAL OBLIGATIONS OF SELLER AND, IF SELLER DEFAULTS PURSUANT TO THIS AGREEMENT BY FAILING TO CONVEY THE LOT TO BUYER IN THE MANNER PROVIDED IN THIS AGREEMENT OR COMMITS ANY OTHER DEFAULT PURSUANT TO THIS AGREEMENT OR ANY OF SUCH CLOSING DOCUMENTS, EXCEPT FOR THE REMEDIES SET FORTH IN THIS SECTION 10.2, BUYER SHALL NOT BE ENTITLED TO ANY OTHER REMEDIES AND NO ASSETS OF SELLER (OTHER THAN THE LOT) SHALL BE SUBJECT TO RECOURSE. IN PLACING THEIR INITIALS AT THE PLACES PROVIDED BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF THE PROVISION OF THIS SECTION 10.2 AT THE TIME EACH PARTY EXECUTED THIS AGREEMENT. THE PROVISIONS OF THIS SECTION 10.2 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. Seller Initials Buyer Initials

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 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.