Seller’s Remedies. If Purchaser fails to perform its obligations pursuant to this Contract at or prior to Closing for any reason except failure by Seller to perform hereunder, or if prior to Closing any one or more of Purchaser's representations or warranties are breached in any material respect, and this failure or breach is not cured within three (3) Business Days after written notice from Seller to Purchaser (other than failure to close for any reason unrelated to a default by Seller, for which there shall be no notice or cure period), then Seller, as its SOLE and EXCLUSIVE remedy (except as provided in Sections 6(c) and 9), may (i) terminate this Contract and receive the Xxxxxxx Money as liquidated damages and not as penalty, in full satisfaction of claims against Purchaser hereunder, or (ii) waive Purchaser’s failure or breach and proceed to Closing. Seller and Purchaser agree that Seller's damages resulting from Purchaser's default are difficult, if not impossible, to determine, and the Xxxxxxx Money is a fair estimate of those damages and has been agreed to in an effort to cause the amount of damages to be certain. Notwithstanding anything in this Section 11(a) to the contrary, in the event of Purchaser's default or termination of this Contract, Seller shall have all remedies available at law or in equity if Purchaser or any party related to or affiliated with Purchaser is asserting any claims or right to the Property that would otherwise delay or prevent Seller from having clear, indefeasible and marketable title to the Property other than as a result of Purchaser’s exercise of its remedies under subsection (b) hereof. If Closing is consummated, then Seller shall have all remedies available at law or in equity if Purchaser fails to perform any post-closing obligation of Purchaser under this Contract.
Seller’s Remedies. IF PURCHASER DEFAULTS IN ITS OBLIGATION TO ACQUIRE THE PROPERTY, THEN SELLER, AS ITS SOLE AND EXCLUSIVE REMEDY, SHALL BE ENTITLED TO TERMINATE THIS AGREEMENT AND TO RECEIVE OR RETAIN THE DEPOSIT AND THE INITIAL PAYMENT AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, IN FULL SATISFACTION OF CLAIMS AGAINST PURCHASER HEREUNDER (EXCEPT FOR ANY CLAIM FOR BREACH OF A TERMINATION SURVIVING OBLIGATION, AND IF THE CLOSING OCCURS, EXCEPT FOR ANY CLAIM FOR BREACH OF ANY OBLIGATION THAT EXPRESSLY SURVIVES THE TERMINATION OF THIS AGREEMENT OR THE CLOSING PURSUANT TO THE TERMS OF THIS AGREEMENT, FOR WHICH CLAIMS THERE SHALL BE NO LIMITATION OR RESTRICTION ON LIABILITY). SELLER AND PURCHASER AGREE THAT SELLER'S DAMAGES RESULTING FROM PURCHASER'S DEFAULT ARE DIFFICULT, IF NOT IMPOSSIBLE, TO DETERMINE AND THAT THE SUM OF THE DEPOSIT AND THE INITIAL PAYMENT IS A FAIR ESTIMATE OF THOSE DAMAGES WHICH HAS BEEN AGREED TO IN AN EFFORT TO CAUSE THE AMOUNT OF SAID DAMAGES TO BE CERTAIN. SELLER AND PURCHASER WITNESS THEIR AGREEMENT TO THIS SECTION 9.1 BY INITIALING IMMEDIATELY BELOW. INITIALS OF SELLER INITIALS OF PURCHASER
Seller’s Remedies. In the event Purchaser fails to pay any amount due and owing hereunder, fails to perform any other obligation hereunder; Seller shall have the right to exercise one or more of the following remedies: (a) recover the balance of all amounts due hereunder; (b) enter any premises where the Equipment may be located and take possession of the Equipment or render it unusable and retain all prior payments as partial compensation for its use and depreciation; (c) require Purchaser to assemble the Equipment for safe shipment and make it available to Seller; (d) incur collection and legal expenses (including reasonable attorneys’ fees) in exercising any of its rights and remedies upon default, which Purchaser shall pay and which shall become part of Seller’s reasonable expenses of retaking, repairing, holding and reselling, and (e) pursue any other remedy permitted by law. Should legal proceedings be instituted by Seller to recover any amounts due hereunder or to take procession of the Equipment, Purchaser shall pay all collection expenses (including reasonable attorneys’ fees) and hereby waives trial by jury. If more than one Purchaser is named in this Agreement, the liability of each shall be joint and several. Seller’s rights shall be cumulative and action on one shall not be deemed to constitute an election or waiver of the other rights to which Seller may be entitled. Waiver by Seller of a breach or default shall not constitute waiver of any other breach or default by Purchaser or waiver of any of Seller’s rights.
Seller’s Remedies. In the event Buyer fails to take title when title is tendered by Seller, Seller at its option may seek specific performance of this Agreement or may ipso facto terminate this Agreement and retain Buyer’s Deposit.
Seller’s Remedies. If Purchaser defaults on its obligations hereunder or under the Other Purchase and Sale Agreements at or prior to Closing for any reason, or if prior to Closing any one or more of Purchaser’s representations or warranties or covenants hereunder, or under the Other Purchase and Sale Agreements, are breached in any material respect that impairs Purchaser’s ability to close under this Agreement or under the Other Purchase and Sale Agreements and such default or breach is not cured by the earlier of the third (3rd) Business Day after written notice thereof from Seller or the Closing Date (except no notice or cure period shall apply if Purchaser fails to consummate the purchase of the Partnership Interests hereunder or the other Acquired Properties pursuant to the Other Purchase and Sale Agreements), Seller shall be entitled, as its sole remedy hereunder (except as provided in Sections 4.10, 8.8, 10.3 and 10.4 hereof), to terminate this Agreement. Notwithstanding anything in this Section 10.1 to the contrary, in the event of Purchaser’s default or a termination of this Agreement, Seller shall have all remedies available at law or in equity in the event Purchaser or any party related to or affiliated with Purchaser is asserting any claims or right to the Partnership Interests or the Property that would otherwise delay or prevent Seller from having clear, indefeasible and marketable title to the Partnership Interests or the Property. In all other events Seller’s remedies shall be limited to those described in this Section 10.1 and Sections 4.10, 8.8, 10.3 and 10.4 hereof. If Closing is consummated, Seller shall have all remedies available at law or in equity in the event Purchaser fails to perform any obligation of Purchaser under this Agreement. IN NO EVENT SHALL PURCHASER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, MEMBERS, MANAGERS, OWNERS OR AFFILIATES, ANY OFFICER, MANAGER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PARTNERSHIP INTERESTS OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.
Seller’s Remedies. The sale of the Property is a cash sale and is not subject to any financing contingency. The Buyer may not delay the Closing Date or terminate this Agreement due to the Buyer’s inability to obtain financing. If the Buyer fails to close on the Closing Date due to a lack of financing, the Buyer shall be in default of this Agreement and the Seller may, but shall not obligated to, terminate this Agreement and retain the Deposit Money made hereunder as liquidated damages. The Parties agree that the actual damages upon the Buyer’s default would be extremely difficult or impracticable to ascertain and that the Deposit Money, which has been negotiated, represents a fair and reasonable amount of damages that the Seller will sustain if the Buyer violates or fails to close on the Closing Date due to inability to obtain financing or lack of funding. In the event the Buyer violates or fails to fulfill or perform any of the terms and conditions of this Agreement required to be performed by the Buyer prior to Closing or if the Buyer fails to consummate the acquisition of the Property as required hereunder, the Seller may terminate this Agreement upon written notice to the Buyer and the Deposit Money shall be delivered to the Seller by the Escrow Agent as the Seller’s sole and exclusive remedy, as liquidated damages for such violation or failure, whereupon this Agreement shall become null and void, and neither party shall have any further rights or obligations hereunder, except for such obligations as expressly survive the termination of this Agreement. The Parties agree the actual damages upon the Buyer’s default would be extremely difficult or impracticable to ascertain and the Deposit Money, which has been negotiated, represents a fair and reasonable amount of damages that the Seller will sustain if the Buyer violates or fails to fulfill and perform any of the terms and conditions of this Agreement required to be performed by the Buyer prior to Closing under the circumstances existing at the time hereof. Notwithstanding anything to the contrary set forth in this Agreement, in no event will the Seller be liable to the Buyer or to any representatives, agents, affiliates or subsidiaries of the Buyer, for any special, exemplary, indirect or consequential damages, including without limitation any lost profits, loss of business, business interruption, lost savings or other incidental or punitive damages, even if the Seller has been advised of the possibility of such damages.
Seller’s Remedies. (a) With respect to the Ventana Inn & Spa: IF PURCHASER FAILS TO PERFORM ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT AT OR PRIOR TO CLOSING (FOR ANY REASON EXCEPT FAILURE BY THE SELLERS TO PERFORM HEREUNDER), OR IF PRIOR TO CLOSING ANY ONE OR MORE OF PURCHASER’S REPRESENTATIONS OR WARRANTIES ARE BREACHED IN ANY MATERIAL RESPECT, THE SELLERS SHALL BE ENTITLED, AS THEIR SOLE REMEDY (EXCEPT WITH RESPECT TO ANY COVENANT OF INDEMNITY BY PURCHASER SET FORTH IN THIS AGREEMENT), TO TERMINATE THIS AGREEMENT AND THE OTHER PURCHASE AND SALE AGREEMENTS (EXCEPT THE PROVISIONS HEREOF AND THEREOF WHICH EXPRESSLY SURVIVE TERMINATION) AND RECOVER THE EXXXXXX MONEY AS LIQUIDATED DAMAGES AND NOT AS PENALTY, IN FULL SATISFACTION OF CLAIMS AGAINST PURCHASER HEREUNDER. THE SELLERS AND PURCHASER AGREE THAT THE SELLERS’ DAMAGES RESULTING FROM PURCHASER’S DEFAULT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE, AND IF NOT IMPOSSIBLE, TO DETERMINE AND THE EXXXXXX MONEY IS A FAIR AND REASONABLE ESTIMATE OF THOSE DAMAGES WHICH HAS BEEN AGREED TO IN AN EFFORT TO CAUSE THE AMOUNT OF SUCH DAMAGES TO BE CERTAIN. ALL OTHER CLAIMS TO DAMAGES OR OTHER REMEDIES IN CONNECTION WITH PURCHASER’S FAILURE TO CLOSE AND CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREIN ARE EXPRESSLY WAIVED BY SELLER. THE PARTIES ACKNOWLEDGE AND AGREE THAT SELLER’S ACTUAL DAMAGES IN THE EVENT OF PURCHASER’S DEFAULT WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. THE PAYMENT OF THE EXXXXXX MONEY TO SELLER AS LIQUIDATED DAMAGES UNDER THE CIRCUMSTANCES PROVIDED FOR HEREIN IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF SECTIONS 3275 OR 3369 OF THE CALIFORNIA CIVIL CODE, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO SECTIONS 1671, 1676 AND 1677 OF THE CALIFORNIA CIVIL CODE. BY PLACING THEIR INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE, THE REASONABLENESS OF THE AMOUNT OF LIQUIDATED DAMAGES AGREED UPON, AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION. THE FOREGOING SHALL NOT LIMIT SELLER’S RIGHT TO RECEIVE REIMBURSEMENT FOR ATTORNEYS’ FEES PURSUANT TO SECTION 11.8 HEREOF, NOR WAIVE OR AFFECT ANY PROVISIONS OF THIS AGREEMENT WHICH EXPRESSLY STATE THAT THEY SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. 45 [ILLEGIBLE] SELLERS’ INITIALS [ILLEGIBLE] PURCHASER’S INITIALS
Seller’s Remedies. In the event Purchaser shall be deemed to be in default hereunder Seller may, at Seller's sole option, do any one or more of the following: (i) terminate this Agreement by written notice delivered to Purchaser on or before the Closing; and/or (ii) enforce specific performance of this Agreement against Purchaser including Seller's reasonable costs and attorneys fees in connection therewith; and/or (iii) exercise any other right or remedy Seller may have at law or in equity by reason of such default including, but not limited to, the recovery of reasonable attorneys' fees incurred by Seller in connection herewith.
Seller’s Remedies. Upon failure of Buyer to comply herewith, Seller may either:
Seller’s Remedies. Upon the failure by Buyer to fulfill or perform any undertaking, commitment, or obligation provided for herein on the part of Buyer that is required to be fulfilled on or prior to the Closing Date, Seller, at its sole option, may (i) enforce specific performance of this Agreement or (ii) pursue any rights or remedies available at law or in equity.
