Buyer Defaults and Sellers Remedies. (a) Buyer Default. The following events shall be defaults with respect to Buyer (each, a “Buyer Default”):
Buyer Defaults and Sellers Remedies
Buyer Defaults and Sellers Remedies Sample Clauses
Related to Buyer Defaults and Sellers Remedies
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.
Purchaser’s Remedies If Seller fails to perform its obligations pursuant to this Agreement for any reason except failure by Purchaser to perform hereunder, or if prior to Closing any one or more of Seller's representations or warranties are breached in any material respect, Purchaser shall elect, as its sole remedy, either to (i) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing and recover the Earnest Money, (ii) enforce specific performance, or (iii) waive said xxxxxxx or breach and proceed to Closing. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten (10) business days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within two (2) months following the scheduled Closing Date. Purchaser's remedies shall be limited to those described in this Section 10.2 and Sections 10.3 and 10.4 hereof. If, however, the equitable remedy of specific performance is not available, Purchaser may seek any other right or remedy available at law or in equity; provided, however, that in no event shall Seller's liability exceed the lesser of (i) $50,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and incurred directly in connection with the negotiation of this Agreement or the due diligence activities performed by Purchaser or at Purchaser's direction in connection with the performance of examinations, inspections and/or investigations pursuant to Article 4. For purposes of this provision, specific performance shall be considered not available to Purchaser only if a court of competent jurisdiction (or an arbitrator, as per Exhibit G) determines conclusively that Purchaser is entitled to specific performance on the merits of its claim but said court or arbitrator is unable to enforce specific performance due to reasons beyond the control of the court or arbitrator. IN NO EVENT SHALL SELLER'S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, 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 OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.
Buyer’s Remedies If both (a) this Agreement is terminated ---------------- prior to Closing by Buyer pursuant to Section 8.1.2 or 8.1.3 as a result of a ---------------------- breach by Seller in any material respect of any of its representations and warranties made herein or its covenants or agreements made herein and (b) Buyer is not in breach in any material respect of any of its representations and warranties made herein or its covenants or agreements made herein, the Deposit and all accrued interest thereon shall be returned to Buyer, and Buyer shall have, in addition to its right to receive the Deposit and all accrued interest thereon, the right to seek monetary damages from Seller; provided, however, that -------- ------- such damages shall be limited to $1,000,000.00; and provided further, that in no ---------------- event shall Buyer be entitled to make any claim against Seller for, nor be entitled to damages from Seller for, any anticipated profits it lost as a result of Buyer's not acquiring the System; and provided further, that nothing in this ---------------- Section 8.2.2 shall be an admission by Seller that Buyer shall be entitled to ------------- damages for anticipated profits under any circumstances. If Seller defaults in the performance of its obligations under this Agreement, Buyer shall be entitled, in addition to any other remedies that may be available, to request Seller to specifically perform its obligations under this Agreement, if necessary, through injunction, court order or other process, and to recover from Seller any costs or expenses reasonably incurred by Buyer in connection therewith.
Buyer Default If Buyer defaults under this Contract after the Review Period, and such default continues for thirty (30) days following written notice from Seller (provided no notice shall extend the time for Closing), then at Seller’s election by written notice to Buyer, this Contract shall be terminated and of no effect, in which event the Xxxxxxx Money Deposit, including any interest thereon, shall be paid to and retained by the Seller as Seller’s sole and exclusive remedy hereunder, and as liquidated damages for Buyer’s default or failure to close, and both Buyer and Seller shall thereupon be released from all obligations hereunder.
Seller’s Default Buyer may elect to treat this Agreement as cancelled, in which case all Xxxxxxx Money paid by Buyer hereunder shall be returned and Buyer may recover such damages as may be proper, or Buyer may elect to treat this Agreement as being in full force and effect and Buyer shall have the right to specific performance or damages, or both.
Seller Default If a Seller, prior to the Closing, defaults in its representations, warranties, covenants, or obligations under this Agreement, including to sell its Property as required by this Agreement and such default continues for more than ten (10) days after written notice from Purchaser, then, at Purchaser’s election, Purchaser may either (i) if Purchaser has closed on the remaining Properties for which there has been no default alleged, seek specific performance of the defaulting Seller’s obligations pursuant to this Agreement (but not damages); or (ii) give a Termination Notice to Sellers’ Representative of Purchaser’s decision to terminate this Agreement for the Properties for which there was such a default, proceed to Closing on the remaining Properties, and the applicable Seller shall pay to Purchaser an amount equal to the Applicable Share of the Deposit for the terminated Properties, Return on Deposit on the Applicable Share amount (or credit the same to Purchaser against the Base Purchase Price for the other Properties for which this Agreement has not been terminated), an amount equal to the actual third party costs incurred by Purchaser relating to breaking Purchaser’s rate lock with respect to the terminated Properties (provided Sellers’ liability for such costs to Purchaser related to breaking the rate lock shall not exceed $2,000,000 in the aggregate regardless of the number of terminated Properties), and, if Sellers’ default under this Agreement resulted from an intentional action or inaction of Sellers taken in bad faith (excluding any action or inaction a Seller reasonably takes or refuses to take in response to a request or requirement of any Lender) that causes one (1) or more of the Closings not to occur solely as a result of such action or inaction, a termination fee of $8,000,000 (the “Termination Fee”) (provided Purchaser has otherwise performed it obligations under this Agreement with respect to the other remaining Properties, including delivery of the Purchase Price therefor, and Sellers have been afforded notice and an opportunity to cure as provided above but have failed to so cure). The amount of the Termination Fee that may be collected by Purchaser shall be limited to $8,000,000, regardless of the number of Sellers alleged to have defaulted hereunder. Purchaser shall be entitled to execute on the Guaranty for any of the Applicable Share of the Deposit, Return on Deposit, and Termination Fee if the same are not returned within one (1) day after termination of the Agreement with respect to the Property or Properties in question.
Buyer’s Default Seller’s remedies shall be limited to liquidated damages in the amount of the Xxxxxxx Money set forth in Section IV. It is agreed that such payments and things of value are liquidated damages and are Seller’s sole and only remedy for Buyer’s failure to perform the obligations of this Agreement. The Parties agree that Seller’s actual damages in the event of Buyer’s default would be difficult to measure, and the amount of the liquidated damages herein provided for is a reasonable estimate of such damages.
Seller’s Representations Seller represents and warrants to Buyer as follows:
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.
