Default by Seller Clause Samples
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Default by Seller. Notwithstanding any provision in this Agreement to the contrary, if Closing of the purchase and sale transaction provided for herein does not occur as herein provided (time being of the essence) by reason of any default by Seller hereunder or a default by Polish Sellers under the Polish Purchase Agreement, the Purchasers may, as their sole and exclusive remedies, elect by written notice to Seller, within five (5) Business Days following the scheduled Closing Date, either (a) to terminate this Agreement and to cause their Affiliates to cause the Polish Purchasers to terminate the Polish Purchase Agreement, in which event the Purchasers shall receive from the Escrow Agent the Escrowed Deposit and the Polish Purchasers shall receive the Polish Deposit pursuant to the Polish Purchase Agreement, whereupon Seller and the Purchasers will have no further rights or obligations under this Agreement and the Polish Sellers and Polish Purchasers will have no further rights or obligations under the Polish Purchase 24 Agreement, except those obligations that expressly survive termination hereof and the Polish Purchase Agreement, (b) proceed to Closing to the extent reasonably practicable, in which case Seller shall not be entitled to refuse to proceed to Closing unless the Purchasers are in default hereunder or any condition to Seller’s obligation to consummate the Closing pursuant to Section 3.5(b) or Section 3.5(c) is not satisfied, or (c) postpone Closing to the date which is not later than ninety (90) days following the Closing Date (but in no event beyond the Long Stop Date), and, in any event, the Purchasers (for themselves and on behalf of the Polish Purchasers) hereby waive all other remedies against Seller or the Polish Sellers or their respective Affiliates, including any claim for damages of any type or kind including consequential or punitive damages. If the Purchasers elect to postpone Closing pursuant to the provisions of this Section 3.7, the provisions of this Agreement shall apply as if references to the Closing Date are to such postponed date (provided that Purchasers shall have no further right to postpone the Closing pursuant to this Section 3.7) and time shall be of the essence for the purposes of such postponed Closing. Unless otherwise expressly required pursuant to this Agreement, in no event shall Seller be obligated to undertake any of the following: (A) change the condition of the Projects or restore the same after any fire or other casualty; (...
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. 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, 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. 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. If Seller fails to perform any of the covenants of this Agreement, or if a breach of any representations, warranties, or covenants in any respect hereunder shall occur prior to Closing, or if Seller otherwise defaults hereunder prior to Closing, without any default by Purchaser, and such breach or failure continues beyond any cure periods provided herein, then Purchaser shall have, as its sole and exclusive remedies: (a) the right to terminate this Agreement and receive, upon written demand, the entire Deposit, or (b) the right to seek specific performance of Seller’s obligations under this Agreement in accordance with applicable law (but not damages); provided, however, if Purchaser seeks specific performance, but a court determines that such relief is unavailable due the sale of the Property by Seller to a third party, Purchaser may pursue any remedies available at law or in equity (including, without limitation, any and all damages resulting from Seller’s default), not to exceed the amount of $100,000.00. Notwithstanding anything to the contrary contained herein, in no event shall Seller be liable to Purchaser for any punitive damages, or for any consequential, special damages or any other damages. If Purchaser fails to file an action for specific performance or damages (as limited herein) within six (6) months after Seller’s default, then Purchaser shall be deemed to have elected to terminate the Agreement in accordance with subsection (i) above. This Agreement confers no present right, title or interest in the Property to Purchaser and Purchaser agrees not to file a lis pendens against the Property except in connection with, and after, the filing of a suit for specific performance or damages (as limited herein), as applicable. If Purchaser terminates this Agreement pursuant to this Section, then neither party shall have any further obligation or liability to the other hereunder except those which shall survive termination of this Agreement by specific provision herein.
Default by Seller. In the event the Close of Escrow and the consummation of the transactions herein contemplated do not occur by reason of any default by Seller, Buyer may elect to exercise by written notice to Seller and Escrow Holder and as its sole and exclusive remedy, one (1) of the following remedies: (i) to terminate this Agreement in which event the ▇▇▇▇▇▇▇ Money shall be returned to Buyer (and Buyer shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expenses), and thereafter neither Seller nor Buyer shall have any further rights, obligations, or liabilities under this Agreement except for the obligations pursuant to this Agreement deemed to expressly survive the termination, or (ii) to enforce, pursue, and seek specific performance of this Agreement within ninety (90) days of such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party out-of-pocket expenses actually incurred by Buyer in connection with the proposed purchase of the Property, including with respect to the negotiation and preparation of this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement prior to the termination of this Agreement by Buyer; provided, however, in no event shall Seller be obligated under this Agreement to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses (in the aggregate) in excess of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default by Seller under this Agreement.
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. If Purchaser shall not be in default hereunder and if Seller refuses or fails to consummate the Closing under this Contract other than due to a termination permitted hereunder or a failure of a condition precedent to Seller's obligation to close as set forth in Section 7.2 hereof, Purchaser may, at Purchaser's sole option, as its sole and exclusive remedies, either (a) terminate this Contract in which event neither party shall have any further rights, duties or obligations hereunder except for provisions of this Contract which expressly survive the termination hereof, and Purchaser shall be entitled to a refund of the ▇▇▇▇▇▇▇ Money Deposit, or (b) enforce specific performance of this Contract. Notwithstanding anything contained in this Section to the contrary, in the event of (x) (i) any breach by Seller of any representation or warranty under this Contract which survives the Closing, and (ii) the Closing occurs under this Contract or (y) any breach by Seller of any indemnity under this Contract which survives the Closing or termination of this Contract, in either the case of (x) or (y), Purchaser shall have any rights and remedies available at law or in equity by reason of such breach, excluding, however, any punitive, speculative or consequential damages or damages for loss of opportunity or lost profit. Except as otherwise provided in this Section 10.2, in no event shall Seller be liable to Purchaser for any damages, including, without limitation, any actual, punitive, speculative or consequential damages or damages for loss of opportunity or lost profit.
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.