Common use of Default by the Seller Clause in Contracts

Default by the Seller. If the Seller fails to perform any of its obligations under this Agreement and if the Purchaser is not in default of its obligations hereunder, the Purchaser shall notify the Seller in writing of the nature of and occurrence of the event of default and the Seller shall have five (5) 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’s sole option, may either: (a) terminate this Agreement by delivering written notice to the Seller (and receive reimbursement of all of its reasonable pursuit costs), (b) seek the remedy of specific performance, or (c) waive said default and proceed to Closing without reduction or abatement of the Purchase Price and accept the Property subject to any such waived default. Notwithstanding the foregoing, 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 shall be entitled to all rights and remedies available 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, without limitation, reimbursement for 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 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 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 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 fails is unable, unwilling or refuses to perform 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 agreement contained herein or in any other documents, agreements or instruments from the Seller, or for the injunction against a violation of any of its obligations under this Agreement the terms hereof or thereof, or in and if of the Purchaser is not exercise of any power granted hereby or thereby or by law. The Seller recognizes that in default 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 its obligations hereunderposting 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 Seller 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 Buyer shall notify be entitled to all damages and remedies available to Buyer under all applicable laws as a result of such default, including, without limitation, the Seller in writing return of the nature of deposit together with the interest thereon, together with reasonable attorneys' fees and occurrence of expenses incurred by the event of default and the Seller shall have five (5) business days Buyer to cure such event of defaultenforce this Agreement; provided, however, that if monetary damages shall be limited in the default is a failure aggregate 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’s sole option, may either: (a) terminate this Agreement by delivering written notice to the Seller (and receive reimbursement of all of its reasonable pursuit costs), (b) seek the remedy of specific performance, or (c) waive said default and proceed to Closing without reduction or abatement of the Purchase Price and accept the Property subject to any such waived default. Notwithstanding the foregoing, 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 shall be entitled to all rights and remedies available 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, without limitation, reimbursement for 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) 3.1 hereof, nothing contained in this Agreement shall limit or 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 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 fails 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 its obligations under this Agreement the material covenants and if 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 Purchaser is not in default of its obligations hereundersame) after notice thereof from the Purchaser, the Purchaser shall notify the Seller in writing of the nature of and occurrence of the event of default and the Seller shall have five (5) 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’s sole option, may either: (a) terminate this Agreement by delivering written notice 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 receive reimbursement direct Escrow Agent to refund to Purchaser the portion of all of its reasonable pursuit coststhe Deposit allocable to the affected Property as provided in Section 10.3), (b) seek the remedy of specific performance, or (c) waive said default and proceed to Closing without reduction or abatement of the Purchase Price and accept the Property subject to any such waived default. Notwithstanding the foregoing, if specific performance is not available and such event of default is due to fraud, willful misconduct or bad faith of the Seller, and/or the Purchaser shall be entitled to may pursue any and all rights and 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, without limitationbut not limited to, reimbursement a suit for Purchaser’s actual outspecific 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 Three Million One Hundred Fifty-of-pocket costs two Thousand Six Hundred Eighty Dollars ($3,152,680.00) plus the reasonable attorneys' fees and expenses incurred by Purchaser in connection with the transaction contemplated by this Agreement). Except as set forth in Section 5(D) hereof, nothing contained in enforcing this Agreement and/or the Gaithersburg Contract against Seller, "Seller" under the Gaithersburg Contract and/or MI in respect of 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 limit be deemed cured if the events, conditions, acts or otherwise affect any 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 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 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 Closingdate actually made.

Default by the Seller. If the Seller fails to perform any of its obligations under this Agreement and if the Purchaser is not in default of its obligations hereunder, the Purchaser shall notify the Seller in writing of the nature of and occurrence of the event of default and the Seller shall have five (5) 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’s sole option, may either: (a) terminate this Agreement by delivering written notice to the Seller (and receive reimbursement of all of its reasonable pursuit costs), (b) seek the remedy of specific performance, or (c) waive said default and proceed to Closing without reduction or abatement of the Purchase Price and accept the Property subject to any such waived default. Notwithstanding the foregoing, 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 shall be entitled to all rights and remedies available 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, without limitation, reimbursement for 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 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 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 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 arising under any express indemnification of the Seller by the Purchaser set forth in this Agreement or arising from any breach or default by the Purchaser after the Closing of any obligations in this Agreement which are expressly provided to survive Closing. C.

Default by the Seller. If the Seller fails 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 its obligations under 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 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 if not attributable specifically to any Property), not to exceed $30,000 per Property per party, or the Purchaser is not in default of its obligations hereunder, the Purchaser shall notify the Seller in writing of the nature of and/or Tenant may instead elect to pursue any and occurrence of the event of default and the Seller shall have five (5) 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’s sole option, may either: (a) terminate this Agreement by delivering written notice to the Seller (and receive reimbursement of all of its reasonable pursuit costs), (b) seek the remedy of specific performance, or (c) waive said default and proceed to Closing without reduction or abatement of the Purchase Price and accept the Property subject to any such waived default. Notwithstanding the foregoing, 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 shall be entitled to all rights and remedies available to them at law or in equity, including without limitationincluding, but not limited to, a suit for specific performance or other equitable relief, provided, however, that, (x) in no event shall the right Seller or MI be liable for (and Purchaser and Tenant hereby agree that 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 five percent (5%) (provided, Tenant and Crestline together shall be limited to, and shall not recover all damages which the Purchaser may suffer as a result in excess of, one percent (1%) of such breach (includingAllocable 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, without limitationCrestline, reimbursement for Purchaser’s actual out-of-pocket costs Purchaser or Guarantors pursuant to Section 11.1 and the reasonable attorneys' fees and expenses incurred by Purchaser and Tenant in connection with enforcing the transaction contemplated by 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 Agreement). Except 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 set forth in Section 5(D) hereofa technical matter, nothing contained in this Agreement shall limit such representation or otherwise affect any warranty was false as 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 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 Closingdate actually made.