Common use of Default by the Seller Clause in Contracts

Default by the Seller. If the Seller or MI shall have made any representation or warranty herein which shall be untrue in any material respect when made or updated as herein provided, or if the Seller or MI shall fail to perform any of the material covenants and agreements contained herein and such condition or failure continues for a period of ten (10) days (or such additional period as may be reasonably required to effectuate a cure of the same) after notice thereof from the Purchaser, the Purchaser may terminate this Agreement with respect to the affected Property and Seller shall reimburse to Purchaser the Purchaser's expenses incurred in respect of such affected Property, not to exceed $30,000 (and direct Escrow Agent to refund to Purchaser the portion of the Deposit allocable to the affected Property as provided in Section 10.3), and/or the Purchaser may pursue any and all remedies available to it at law or in equity, including, but not limited to, a suit for specific performance or other equitable relief; provided, however, that, (x) in no event shall the Seller or MI be liable for (and Purchaser hereby agrees that it will not commence or prosecute any action for) consequential or punitive or exemplary damages and (y) in no event shall the aggregate liability of the Seller or MI under this Agreement exceed an amount equal to Two Million Three Hundred Ninety-One Thousand Nine Hundred Fifty Dollars ($2,391,950) plus the reasonable attorneys' fees and expenses incurred by Purchaser in enforcing the Agreement against Seller and/or MI in respect of Seller's or MI's default. It is understood and agreed that for purposes of this Section 10.1, if a default results from a false representation or warranty, such default shall be deemed cured if the events, conditions, acts or omissions giving rise to the falsehood are cured within the applicable cure period even though, as a technical matter, such representation or warranty was false as of the date actually made.

Default by the Seller. If the Seller or MI shall have made any representation or warranty herein which shall be untrue in any material respect when made or updated as herein provided, or if the Seller or MI shall fail to perform any of the material covenants and agreements contained herein and such condition or failure continues for a period of ten (10) days (or such additional period as may be reasonably required to effectuate a cure of the same) after notice thereof from the Purchaser, the Purchaser may terminate this Agreement with respect to the affected Property and Seller shall reimburse to Purchaser the Purchaser's expenses incurred in respect of such affected the Property, not to exceed $30,000 (and direct Escrow Agent to refund to Purchaser the portion of the Deposit allocable to the affected Property as provided in Section 10.3), and/or the Purchaser may pursue any and all remedies available to it at law or in equity, including, but not limited to, a suit for specific performance or other equitable relief; provided, however, that, that in such event (x) in no event neither Seller nor MI shall the Seller or MI be liable for (and Purchaser hereby agrees that it will not commence or prosecute any action for) consequential or punitive or exemplary damages and (y) in no event shall the aggregate liability of the Seller or MI under this Agreement shall not exceed an amount equal to Two Million Three One Hundred Ninety-One Thousand Nine Hundred Fifty Dollars ($2,391,950100,000) plus the reasonable attorneys' fees and expenses incurred by Purchaser in enforcing the Agreement against Seller and/or MI in respect of Seller's or MI's default. It is understood and agreed that for purposes of this Section 10.1, if a default results from a false representation or warranty, such default shall be deemed cured if the events, conditions, acts or omissions giving rise to the falsehood are cured within the applicable cure period even though, as a technical matter, such representation or warranty was false as of the date actually made.

Default by the Seller. If the Seller or MI shall have made any representation or warranty herein which shall be untrue in any material respect when made or updated as herein provided, or if the Seller or MI shall fail fails to perform any of its obligations under this Agreement and if the material covenants and agreements contained herein and such condition or failure continues for a period Purchaser is not in default of ten (10) days (or such additional period as may be reasonably required to effectuate a cure its obligations hereunder, the Purchaser shall notify the Seller in writing of the samenature of and occurrence of the event of default and the Seller shall have five (5) after notice thereof from business days to cure such event of default; provided, however, that if the default is a failure to close on the Closing Date, then no cure rights shall exist and this Agreement shall terminate. If the Seller fails or refuses to cure such event of default, the Purchaser, at the Purchaser Purchaser’s sole option, may either: (a) terminate this Agreement with respect by delivering written notice to the affected Property and Seller shall reimburse to Purchaser the Purchaser's expenses incurred in respect of such affected Property, not to exceed $30,000 (and direct Escrow Agent receive reimbursement of all of its reasonable pursuit costs), (b) seek the remedy of specific performance, or (c) waive said default and proceed to refund to Purchaser the portion Closing without reduction or abatement of the Deposit allocable Purchase Price and accept the Property subject to any such waived default. Notwithstanding the affected Property as provided in Section 10.3)foregoing, and/or if specific performance is not available and such event of default is due to fraud, willful misconduct or bad faith of the Seller, the Purchaser may pursue any shall be entitled to all rights and all remedies available to it at law or in equity, including without limitation, the right to recover all damages which the Purchaser may suffer as a result of such breach (including, but not limited towithout limitation, a suit reimbursement for specific performance or other equitable relief; provided, however, that, (x) in no event shall the Seller or MI be liable for (and Purchaser hereby agrees that it will not commence or prosecute any action for) consequential or punitive or exemplary damages and (y) in no event shall the aggregate liability of the Seller or MI under this Agreement exceed an amount equal to Two Million Three Hundred NinetyPurchaser’s actual out-One Thousand Nine Hundred Fifty Dollars ($2,391,950) plus the reasonable attorneys' fees of-pocket costs and expenses incurred in connection with the transaction contemplated by Purchaser this Agreement). Except as set forth in enforcing the Section 5(D) hereof, nothing contained in this Agreement against Seller and/or MI in respect of Seller's shall limit or MI's default. It is understood and agreed that for purposes of this Section 10.1, if a default results from a false representation or warranty, such default shall be deemed cured if the events, conditions, acts or omissions giving rise to the falsehood are cured within the applicable cure period even though, as a technical matter, such representation or warranty was false as otherwise affect any of the date actually madePurchaser’s rights or remedies against the Seller arising under any express indemnification of the Purchaser by the Seller set forth in this Agreement or arising from any breach or default by the Seller after the Closing of any obligations in this Agreement which are expressly provided to survive the Closing.

Default by the Seller. If (i) the Seller or MI shall have made any representation or warranty herein which shall be untrue in any material respect when made or updated as herein provided, or (ii) if the Seller or MI shall fail to perform any of the material covenants and agreements contained herein and such condition or failure continues for a period of ten (10) days (or such additional period as may be reasonably required to effectuate a cure of the same) after notice thereof from the Purchaser, the Purchaser may terminate this Agreement with respect to the affected Property and Seller shall reimburse to Purchaser the Purchaser's expenses incurred in respect of such affected Property, not to exceed $30,000 (and direct Escrow Agent to refund to Purchaser the portion of the Deposit allocable to the affected Property as provided in Section 10.3), and/or the Purchaser may pursue any and all remedies available to it at law or in equity, including, but not limited to, a suit for specific performance or other equitable relief; provided, however, that, (x) in no event shall the Seller or MI be liable for (and Purchaser hereby agrees that it will not commence or prosecute any action for) consequential or punitive or exemplary damages and (y) in no event shall the aggregate liability of the Seller or MI under this Agreement and of MI and "Seller" therein under the Gaithersburg Contract exceed an amount equal to Two Three Million Three One Hundred NinetyFifty-One two Thousand Nine Six Hundred Fifty Eighty Dollars ($2,391,9503,152,680.00) plus the reasonable attorneys' fees and expenses incurred by Purchaser in enforcing this Agreement and/or the Agreement Gaithersburg Contract against Seller Seller, "Seller" under the Gaithersburg Contract and/or MI in respect of Seller's or MI's such default. It is understood and agreed that for purposes of this Section 10.1, if a default results from a false representation or warranty, such default shall be deemed cured if the events, conditions, acts or omissions giving rise to the falsehood are cured within the applicable cure period even though, as a technical matter, such representation or warranty was false as of the date actually made.

Default by the Seller. If the Seller or MI shall have made any representation or warranty herein which shall be untrue in any material respect when made or updated as herein provided, or if the Seller or MI shall fail to perform any of the material covenants and agreements contained herein and such condition or failure continues for a period of ten (10) days (or such additional period as may be reasonably required to effectuate a cure of the same) after notice thereof from the PurchaserPurchaser or Tenant, either the Purchaser or the Tenant may terminate this Agreement with respect to the affected Property and each of Purchaser and Tenant may respectively elect that either Seller shall reimburse to Purchaser or Tenant, as the case may be, the Purchaser's or the Tenant's respective direct, out of pocket expenses incurred in respect of such affected Property (and an allocable share of expenses attributable generally to the transactions contemplated by this Agreement and not attributable specifically to any Property), not to exceed $30,000 (and direct Escrow Agent to refund to Purchaser the portion of the Deposit allocable to the affected per Property as provided in Section 10.3)per party, and/or or the Purchaser and/or Tenant may instead elect to pursue any and all remedies available to it them at law or in equity, including, but not limited to, a suit for specific performance or other equitable relief; , provided, however, that, (x) in no event shall the Seller or MI be liable for (and Purchaser and Tenant hereby agrees agree that it they will not commence or prosecute any action for) consequential or punitive or exemplary damages (other than Tenant's, Crestline's, Purchaser's or Guarantor's reasonable attorneys' fees and expenses pursuant to Section 11.11 hereof or for any matter indemnified pursuant to Section 11.1 hereof) and (y) in no event shall the aggregate liability of the Seller or MI under this Agreement exceed an amount equal to Two Million Three Hundred Ninety-One Thousand Nine Hundred Fifty Dollars five percent ($2,391,9505%) (provided, Tenant and Crestline together shall be limited to, and shall not recover in excess of, one percent (1%) of such Allocable Purchase Price from Seller or MI) of the aggregate of the Allocable Purchase Prices for all of the Properties affected by the default plus any amounts necessary to be paid to indemnify and hold harmless Tenant, Crestline, Purchaser or Guarantors pursuant to Section 11.1 and the reasonable attorneys' fees and expenses incurred by Purchaser and Tenant in enforcing the Agreement against Seller and/or MI in respect of Seller's or MI's default. It is understood and agreed that for purposes of this Section 10.1, if a default results from a false representation or warranty, such default shall be deemed cured if the events, conditions, acts or omissions giving rise to the falsehood are cured within the applicable cure period even though, as a technical matter, such representation or warranty was false as of the date actually made.

Default by the Seller. If In the event that all of the conditions precedent set forth in this Agreement have been satisfied or waived by the Buyer on or prior to the Closing Date, and the Buyer is ready, willing and able to proceed with the Closing, but the Seller is unable, unwilling or MI shall have made refuses to consummate the Closing in accordance with the terms and conditions of this Agreement, or in the event that the Seller is otherwise in breach of this Agreement, then the Buyer may proceed to protect and enforce its rights by an action at law, suit in equity or other appropriate proceeding, whether for the specific performance of any representation agreement contained herein or warranty herein which shall be untrue in any material respect when made other documents, agreements or updated as herein providedinstruments from the Seller, or if for the Seller or MI shall fail to perform injunction against a violation of any of the material covenants terms hereof or thereof, or in and agreements contained herein and such condition or failure continues for a period of ten (10) days (or such additional period as may be reasonably required to effectuate a cure of the same) after notice exercise of any power granted hereby or thereby or by law. The Seller recognizes that in such event, any remedy at law may prove to be inadequate relief to the Buyer and therefore the Buyer may obtain any such equitable relief, including, without limitation, temporary and permanent injunctive relief in any such case without the necessity of posting a bond or proving actual damages. No course of dealing and no delay on the part of the Buyer in exercising any right shall operate as a waiver thereof or otherwise prejudice the Buyer's rights. No right conferred hereby or by any other document, agreement or instrument from the PurchaserSeller upon the Buyer shall be exclusive of any other right referred to herein or therein or now or hereafter available at law, in equity, by statute or otherwise. Without limiting the generality of the foregoing, the Purchaser may terminate this Agreement with respect Buyer shall be entitled to the affected Property all damages and Seller shall reimburse to Purchaser the Purchaser's expenses incurred in respect of such affected Property, not to exceed $30,000 (and direct Escrow Agent to refund to Purchaser the portion of the Deposit allocable to the affected Property as provided in Section 10.3), and/or the Purchaser may pursue any and all remedies available to it at law or in equityBuyer under all applicable laws as a result of such default, including, but not limited towithout limitation, a suit for specific performance or other equitable relief; provided, however, that, (x) in no event shall the Seller or MI be liable for (and Purchaser hereby agrees that it will not commence or prosecute any action for) consequential or punitive or exemplary damages and (y) in no event shall the aggregate liability return of the Seller or MI under this Agreement exceed an amount equal to Two Million Three Hundred Ninety-One Thousand Nine Hundred Fifty Dollars ($2,391,950) plus deposit together with the interest thereon, together with reasonable attorneys' fees and expenses incurred by Purchaser in enforcing the Agreement against Seller and/or MI in respect of Seller's or MI's default. It is understood and agreed Buyer to enforce this Agreement; provided, however, that for purposes of this Section 10.1, if a default results from a false representation or warranty, such default monetary damages shall be deemed cured if limited in the events, conditions, acts or omissions giving rise aggregate to the falsehood are cured within the applicable cure period even though, Purchase Price as a technical matter, such representation or warranty was false as of the date actually madeset forth in Section 3.1 hereof.

Default by the Seller. If (i) the Seller or MI shall have made any representation or warranty herein which shall be untrue in any material respect when made or updated as herein provided, or (ii) if the Seller or MI shall fail to perform any of the material covenants and agreements contained herein and such condition or failure continues for a period of ten (10) days (or such additional period as may be reasonably required to effectuate a cure of the same) after notice thereof from the Purchaser, the Purchaser may terminate this Agreement with respect to the affected Property and Seller shall reimburse to Purchaser the Purchaser's expenses incurred in respect of such affected the Property, not to exceed $30,000 (and direct Escrow Agent to refund to Purchaser the portion of the Deposit allocable to the affected Property as provided in Section 10.3Deposit), and/or the Purchaser may pursue any and all remedies available to it at law or in equity, including, but not limited to, a suit for specific performance or other equitable relief; provided, however, that, (x) in no event shall the Seller or MI be liable for (and Purchaser hereby agrees that it will not commence or prosecute any action for) consequential or punitive or exemplary damages and (y) in no event shall the aggregate liability of the Seller or MI under this Agreement and of MI and "Seller" therein under the 3-Pack Contract exceed an amount equal to Two Three Million Three One Hundred NinetyFifty-One two Thousand Nine Six Hundred Fifty Eighty Dollars ($2,391,9503,152,680.00) plus the reasonable attorneys' fees and expenses incurred by Purchaser in enforcing this Agreement and/or the Agreement 3-Pack Contract against Seller Seller, "Seller" under the 3-Pack Contract and/or MI in respect of Seller's or MI's such default. It is understood and agreed that for purposes of this Section 10.1, if a default results from a false representation or warranty, such default shall be deemed cured if the events, conditions, acts or omissions giving rise to the falsehood are cured within the applicable cure period even though, as a technical matter, such representation or warranty was false as of the date actually made.

Default by the Seller. If the Seller or MI shall have made any representation or warranty herein which shall be untrue in any material respect when made or updated as herein provided, or if the Seller or MI shall fail to perform any of the material covenants and agreements contained herein and such condition or failure continues for a period of ten (10) days (or such additional period as may be reasonably required to effectuate a cure of the same) after notice thereof from the Purchaser, the Purchaser may terminate this Agreement with respect to the Ownership Interests in the affected Owner or Owners of the affected Property and Seller shall reimburse to Purchaser the Purchaser's expenses incurred in respect of such affected Property, not to exceed $30,000 140,000 (and direct Escrow Agent if, with respect to refund all Properties except for the affected Property, either (i) Closing has occurred, or (ii) the contemplated Closing will not occur as a result of Purchaser's election to Purchaser the portion terminate this Agreement pursuant to Sections 2.3, 2.4, 2.5, 2.7(d), 8.4 or 10.1 of this Agreement, then the Deposit allocable shall be refunded to the affected Property as provided in Section 10.3Purchaser), and/or the Purchaser may pursue any and all remedies available to it at law or in equity, including, but not limited to, a suit for specific performance or other equitable relief; provided, however, that, (x) in no event shall the Seller or MI be liable for (and Purchaser hereby agrees that it will not commence or prosecute any action for) consequential or punitive or exemplary damages and (y) in no event shall the aggregate liability of the Seller or MI under this Agreement exceed an amount equal to Two Five Million Three Hundred Ninety-One Thousand Nine Hundred Fifty Dollars ($2,391,9505,000,000) plus the reasonable attorneys' fees and expenses incurred by Purchaser in enforcing the Agreement against Seller and/or MI in respect of Seller's or MI's default. It is understood and agreed that for purposes of this Section 10.1, if a default results from a false representation or warranty, such default shall be deemed cured if the events, conditions, acts or omissions giving rise to the falsehood are cured within the applicable cure period even though, as a technical matter, such representation or warranty was false as of the date actually made.

Default by the Seller. If the Seller or MI shall have made any representation or warranty herein which shall be untrue in any material respect when made or updated as herein provided, or if the Seller or MI shall fail fails to perform any of its obligations under this Agreement and if the material covenants and agreements contained herein and such condition or failure continues for a period Purchaser is not in default of ten (10) days (or such additional period as may be reasonably required to effectuate a cure its obligations hereunder, the Purchaser shall notify the Seller in writing of the samenature of and occurrence of the event of default and the Seller shall have five (5) after notice thereof from business days to cure such event of default; provided, however, that if the default is a failure to close on the Closing Date, then no cure rights shall exist and this Agreement shall terminate. If the Seller fails or refuses to cure such event of default, the Purchaser, at the Purchaser Purchaser’s sole option, may either: (a) terminate this Agreement with respect by delivering written notice to the affected Property and Seller shall reimburse to Purchaser the Purchaser's expenses incurred in respect of such affected Property, not to exceed $30,000 (and direct Escrow Agent receive reimbursement of all of its reasonable pursuit costs), (b) seek the remedy of specific performance, or (c) waive said default and proceed to refund to Purchaser the portion Closing without reduction or abatement of the Deposit allocable Purchase Price and accept the Property subject to any such waived default. Notwithstanding the affected Property as provided in Section 10.3)foregoing, and/or if specific performance is not available and such event of default is due to fraud, willful misconduct or bad faith of the Seller, the Purchaser may pursue any shall be entitled to all rights and all remedies available to it at law or in equity, including without limitation, the right to recover all damages which the Purchaser may suffer as a result of such breach (including, but not limited towithout limitation, a suit reimbursement for specific performance Purchaser’s actual out-of-pocket costs and expenses incurred in connection with the transaction contemplated by this Agreement). Except as set forth in Section 5(D) hereof, nothing contained in this Agreement shall limit or other equitable relief; provided, however, that, (x) in no event shall otherwise affect any of the Purchaser’s rights or remedies against the Seller arising under any express indemnification of the Purchaser by the Seller set forth in this Agreement or MI arising from any breach or default by the Seller after the Closing of any obligations in this Agreement which are expressly provided to survive the Closing. B. Default by the Purchaser. If Purchaser defaults in its obligation to close the transaction contemplated by this Agreement (all conditions benefitting Purchaser having been satisfied or waived in writing), then the Seller shall notify the Purchaser in writing of the occurrence Page 21 of the event of default and the Purchaser shall have five (5) days to cure such event of default. If the Purchaser fails or refuses to timely cure such event of default, the Seller shall have the right to terminate this Agreement, which shall be liable for (the Seller’s sole and exclusive remedy and the parties shall have no further rights or obligations under this Agreement. If the Closing occurs, nothing contained in this Agreement shall limit or otherwise affect any of the Seller’s rights or remedies against the Purchaser hereby agrees that it will not commence or prosecute arising under any action for) consequential or punitive or exemplary damages and (y) in no event shall the aggregate liability express indemnification of the Seller or MI under by the Purchaser set forth in this Agreement exceed an amount equal or arising from any breach or default by the Purchaser after the Closing of any obligations in this Agreement which are expressly provided to Two Million Three Hundred Ninety-One Thousand Nine Hundred Fifty Dollars ($2,391,950) plus the reasonable attorneys' fees and expenses incurred by Purchaser in enforcing the Agreement against Seller and/or MI in respect of Seller's or MI's defaultsurvive Closing. It is understood and agreed that for purposes of this Section 10.1, if a default results from a false representation or warranty, such default shall be deemed cured if the events, conditions, acts or omissions giving rise to the falsehood are cured within the applicable cure period even though, as a technical matter, such representation or warranty was false as of the date actually made.C.