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 that Seller (i) defaults in the performance of any of Seller’s obligations under this Agreement, which default remains uncured for five (5) Business Days after written notice thereof to Seller; (ii) fails to consummate the transaction contemplated by this Agreement; (iii) fails to pay the sums required to be paid by Seller under this Agreement, or (iv) otherwise breaches this Agreement, Purchaser, as Purchaser’s sole and exclusive right and remedy prior to Closing, may either: (a) terminate this Agreement, or (b) pursue the remedy of specific performance of Seller’s obligations under this Agreement. The remedy of specific performance is only available to Purchaser if (i) any suit for specific performance is filed within ninety (90) days after Purchaser first becomes aware of the breach or default by Seller, and (ii) Purchaser is not then in material breach or default in the performance of any of its obligations under this Agreement. If Purchaser properly terminates this Agreement under clause (a), the Exxxxxx Money shall be refunded to Purchaser by Escrow Agent, and if Seller fails to close in Bad Faith, Seller shall reimburse Purchaser for its reasonable out-of-pocket expenses incurred in connection with this transaction (including reasonable attorney’s fees, consultant costs, travel costs and similar expenses) up to but not exceeding $150,000.00 and thereafter neither party shall have any rights or obligations under this Agreement, other than Surviving Obligations. None of the provisions of this Section 7.1 shall limit, impair or affect Surviving Obligations. 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, the “Purchase Documents”), it is expressly agreed that: (1) the remedies of Purchaser or its successors or assigns against Seller with respect to the alleged breach by Seller of any representation, warranty, covenant, undertaking, indemnity or obligation contained in any of the Purchase Documents (collectively, “Seller’s Undertakings”) discovered by Purchaser following Closing shall (x) be deemed waived unless Purchaser has filed suit against Seller regarding the alleged breach within nine (9) months after the Closing Date; (y) be limited to an amount not to exceed $500,000.00 in the aggregate; and (z) may be asserted by Purchaser only if Purchaser’s damages in the aggregate exceed $50,000.00 (whereup...
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 may elect, as its sole and exclusive remedy, to (i) terminate this Agreement by written notice to Seller 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, and this Agreement shall have no further force or effect, or (ii) waive the uncured default and proceed to Settlement, or (iii) xxx 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. As a condition precedent to Purchaser exercising its right to bring an action for specific performance hereunder, Purchaser must commence such an action within ninety (90) days after its receipt of actual knowledge or notice of the occurrence of Seller’s default. Purchaser agrees that its failure to timely commence such an action for specific performance within such ninety (90) day period shall be deemed a waiver by it of its right to commence an action for specific performance. Nothing herein shall 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 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) xxx 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. Notwithstanding anything herein to the contrary, if Seller (a) had actual knowledge that any of the representations and warranties set forth in Section 11.1 hereof were untrue as of the Effective Date and the failure of any such representation or warranty to be true would have a “material adverse impact” (as such term is defined in Section 11.1 hereof) on the Property, or (b) defaults in its obligations expressly stated in this Agreement, then Buyer’s sole and exclusive remedy shall be to elect one of the following: (i) to terminate this Agreement, in which event Buyer shall be entitled to the return by the Escrow Holder to Buyer of the Deposit and Seller shall reimburse Buyer for Buyer’s out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses), as supported by reasonable documentation satisfactory to Seller, incurred in connection with Buyer’s due diligence investigations and negotiation and execution of this Agreement, not to exceed One Hundred Thousand Dollars ($100,000.00) in the aggregate, or (ii) if Seller’s breach arises out of its failure to sell and convey the Property to Buyer on the Closing Date, to bring a suit for specific performance for such breach provided that any suit for specific performance must be brought as to the Property within 45 days of Seller’s default, Buyer’s waiving the right to bring suit at any later date to the extent permitted by law; provided further, however, to the extent that Seller cause Buyer’s remedy of specific performance to be unavailable due to Seller’s selling the Property to another third-party prior to the Closing Date, then Buyer shall be entitled to recover damages from Seller. This Agreement confers no present right, title or interest in the Property to Buyer and Buyer agrees not to file a lis pendens or other similar notice against the Real Property except in connection with, and after, the proper filing of a suit for specific performance. Nothing in this Section 13.2 shall prevent or preclude any recovery of attorneys’ fees or other costs incurred by Buyer pursuant to Section 15.5.
Default by Seller. Time is of the essence with respect to any Purchase Order. If for any reason Seller anticipates difficulty in complying with any scheduled delivery, or in meeting any of the other requirements of a Purchase Order or any of the terms and conditions of this Agreement, Seller shall immediately notify Buyer in writing. In no event, however, shall any notice provided hereunder be construed as a waiver by Buyer of any delivery schedule or any other rights or remedies provided to Buyer under this Agreement. Should Seller fail to deliver any goods or services pursuant to the schedule(s) set forth in a Purchase Order, or fail to comply with any provision contained in this Agreement or in a Purchase Order, such a failure shall be deemed a default by Seller. In the event of Seller’s default, Buyer may, in its sole discretion: (i) terminate a Purchase Order without further compensation to Seller by providing written notice, (ii) obtain substitute or replacement goods or services without notice to Seller, and/or (iii) thereafter reject any late goods or services tendered by Seller, even if conforming. Seller shall be responsible for all general, consequential, and incidental damages that Buyer may incur as a result of Seller’s failure to meet delivery schedules, including, but not limited to, the cost of obtaining goods from an alternate source and/or expedited or premium freight or transportation costs. Alternatively, Buyer in its sole discretion may extend the delivery schedule and/or waive other deficiencies in Seller’s performance. In either case, Seller shall extend to Buyer an equitable reduction in the Purchase Order price. If Buyer approves a revised delivery date, Seller shall pay any additional transportation charges. The rights and remedies of Buyer provided in this Article 22 shall not be exclusive, nor deemed an election remedies, and are in addition to any other rights and remedies provided under this Agreement or a Purchase Order, or allowed by law. Seller’s warranty, intellectual property, confidentiality, and related obligations under this Agreement, and all of Buyer’s rights and remedies for any breach by Seller, shall survive Buyer’s termination due to Seller’s default.
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. In the event that Seller fails to consummate this Agreement for any reason other than Purchaser’s default or the permitted termination of this Agreement by Seller or Purchaser as herein expressly provided, Purchaser shall be entitled, as its sole remedy, either (a) to receive the return of the Exxxxxx Money, which return shall operate to terminate this Agreement and release Seller from any and all liability hereunder, or (b) 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 Exxxxxx Money 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 date upon which Closing was to have occurred.
Default by Seller. (a) In the event of an Event of Default by Seller on or before the Closing Date, then, Purchaser may elect, as its sole and exclusive remedy, to either (i) waive such default and seek specific performance of this Agreement, or (ii) terminate this Agreement by delivering written notice to Seller and Title Company and immediately upon termination by Purchaser, Title Company shall pay to Purchaser, as Purchaser’s sole remedy, the Deposit. If Purchaser elects to seek specific performance, such remedy must be elected by Purchaser, and a lawsuit filed by Purchaser, no later than thirty (30) days following the scheduled Closing Date, otherwise Purchaser shall be deemed to have elected the remedy set forth in subsection (ii) of the preceding sentence.
Default by Seller. In the event that the sale is not consummated as a result of the fact that any of Seller’s Representations contained herein are not true and correct on the Effective Date and continuing thereafter through and including the Closing Date, or if Seller fails to perform any of the covenants and agreements contained herein to be performed by Seller within the time for performance as specified herein (including Seller’s obligation to close), Buyer may elect either to (i) terminate Buyer’s obligations under this Agreement by written notice to Seller with a copy to Escrow Holder, in which event the Deposit shall be returned immediately to Buyer; or (ii) file an action for specific performance. Seller agrees that in the event Buyer elects (ii) above, Buyer shall not be required to post a bond or any other collateral with the court or any other party as a condition to Buyer’s pursuit of an action. Seller hereby covenants and agrees that in the event that a default on the part of Seller hereunder is willful in nature, Buyer may (in addition to any and all other remedies of Buyer hereunder) file an action for damages actually suffered by Buyer by reason of Seller’s defaults hereunder (including, but not limited to, attorneys’ fees, engineering fees, fees of environmental consultants, appraisers’ fees, and accountants’ fees incurred by Buyer in connection with this Agreement and any action hereunder). The provisions of the immediately preceding sentence shall survive any termination of this Agreement. Nothing in this Section 15.1 shall be deemed to in any way limit or prevent Buyer from exercising any right of termination provided to Buyer elsewhere in this Agreement.
