Common use of Default of Seller Clause in Contracts

Default of Seller. In the event Seller is in default of its obligations under this Agreement, Buyer, as its exclusive remedies, shall be entitled to either (a) a refund of the full amount of the Initial Xxxxxxx Money Payment and the Xxxxxxx Money Deposit together with all other sums, if any, paid on account of this Agreement by Buyer to unrelated third-parties, including, without limitation, all amounts paid or incurred by Buyer, whether before or after the date of this Agreement, in connection with its due diligence investigation of the Property, or (b) enforce specific performance of this Agreement; provided, however, that any such action for specific performance shall be initiated by Buyer, if at all, within sixty (60) days after that date on which the sale of the Property was scheduled to close hereunder and, if such action is not initiated within such 60-day period, then Buyer shall be deemed conclusively to have elected to waive the right to initiate such action for specific performance, in which event, Buyer's sole remedy shall be to terminate this Agreement and receive a refund of the Initial Xxxxxxx Money Payment and the Xxxxxxx Money Deposit together with all other sums, if any, paid on account of this Agreement by Buyer to unrelated third-parties, including, without limitation, all amounts paid or incurred by Buyer, whether before or after the date of this Agreement, in connection with its due diligence investigation of the Property; and provided, further, Seller shall not be in default hereunder unless and until Buyer shall provide written notice to Seller of the basis for any such default and Seller has failed to cure such matter within ten (10) days of its receipt of such notice; provided, further, Buyer may not enforce specific performance against Seller if Seller is unable to deliver the Property subject only to the Permitted Exceptions (e.g., a third party places a cloud on title to the Property which Seller cannot remove prior to Closing). In no event shall Seller be liable to Buyer for any other actual, punitive, speculative, consequential or other damages, excepting only in the case of the inability of Seller to deliver the Property subject only to the Permitted Exceptions is due to a willful and bad faith overt act of Seller. No delay or omission in the exercise of any right or remedy accruing to Buyer upon any default of Seller under this Agreement shall impair any such right or remedy or be construed as waiver of such default or any default theretofore or thereafter occurring. The waiver by Buyer of any condition or event of default shall not be deemed to be a waiver of any other condition or of any prior or subsequent event of default.

Default of Seller. In the event Seller is in default of fails to perform its obligations under pursuant to Section 2.3, 2.4 or 2.8 or to consummate the Closing pursuant to this AgreementAgreement for any reason except failure of a closing condition in Seller’s favor set forth in this Agreement or except failure by Purchaser to perform hereunder or the permitted termination hereof by Purchaser or Seller in accordance with the express provisions hereof, BuyerPurchaser may elect to either (i) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing or within five (5) business days after the Closing in the event of Seller’s failure to consummate the Closing as set forth above, as its exclusive remedies, in which event Purchaser shall be entitled to either (a) a refund of the full amount of the Initial Xxxxxxx Money Payment and receive back the Xxxxxxx Money Deposit (together with all other sumsinterest earned thereon) and, if any, paid on account applicable the return of this Agreement any Contingency Payments required to be returned by Buyer Seller pursuant to unrelated third-parties, including, without limitation, all amounts paid Section 3.4 herein; or incurred (ii) seek specific performance to enforce Seller’s obligations hereunder by Buyer, whether before or notice to Seller of Purchaser’s election within 30 days after the date originally scheduled Closing Date and filing of this Agreement, in connection with its due diligence investigation of the Property, or (b) enforce specific performance of this Agreement; provided, however, that any such action for specific performance shall be initiated by Buyer, if at all, suit within sixty (60) days after that date on which the sale of the Property was scheduled Closing Date, and to receive reimbursement from the Seller of the reasonable out-of-pocket expenses incurred by the Purchaser as evidenced by documentation reasonably acceptable to Seller in connection with this Agreement in an amount not to exceed Two Hundred Fifty Thousand Dollars ($250,000) in the event that specific performance is unavailable as a result of Seller’s conveyance to a third party in violation of the terms of this Agreement. The remedies set forth in this Section 6.2 shall be the sole and exclusive remedy available to Purchaser for Seller’s failure to close hereunder and, if such action the transaction which is not initiated within such 60-day period, then Buyer shall be deemed conclusively to have elected to waive the right to initiate such action for specific performance, in which event, Buyer's sole remedy shall be to terminate this Agreement and receive a refund of the Initial Xxxxxxx Money Payment and the Xxxxxxx Money Deposit together with all other sums, if any, paid on account subject of this Agreement by Buyer to unrelated third-parties, including, without limitation, all amounts paid or incurred by Buyer, whether before or after in accordance with the date provisions of this Agreement, in connection with its due diligence investigation of the Property; and provided, further, Seller shall not be in default hereunder unless and until Buyer shall provide written notice to Seller of the basis for any such default and Seller has failed to cure such matter within ten (10) days of its receipt of such notice; provided, further, Buyer may not enforce specific performance against Seller if Seller is unable to deliver the Property subject only to the Permitted Exceptions (e.g., a third party places a cloud on title to the Property which Seller cannot remove prior to Closing). In no event shall Seller be liable to Buyer for any other actual, punitive, speculative, consequential or other damages, excepting only in the case of the inability of Seller to deliver the Property subject only to the Permitted Exceptions is due to a willful and bad faith overt act of Seller. No delay or omission in the exercise of any right or remedy accruing to Buyer upon any default of Seller under this Agreement shall impair any such right or remedy or be construed as waiver of such default or any default theretofore or thereafter occurring. The waiver by Buyer of any condition or event of default shall not be deemed to be a waiver of any other condition or of any prior or subsequent event of default.Exhibit 10.1

Default of Seller. In If the event transaction contemplated hereby is not consummated by reason of Seller’s breach or other failure to timely perform all obligations and conditions to be performed by Seller and Purchaser is not otherwise in default of its obligations under this Agreement, Buyerthen Purchaser may, as its sole and exclusive remediesremedy (whether at law or in equity), shall be entitled to either (ai) a refund terminate this Agreement and receive the return of the full amount of the Initial Xxxxxxx Money Payment and the Xxxxxxx Money Deposit together with all other sums, if any, paid on account from the Escrow Agent and so long as the termination occurs after the expiration of this Agreement by Buyer the Inspection Period to recover payment from Seller of an amount equal to Purchaser’s actual out-of-pocket costs to unrelated third-partiesand independent third party vendors, includingincluding reasonable attorneys’ fees, without limitationincurred with regard to this transaction, all amounts paid not to exceed $50,000 in the aggregate; and, thereafter, neither party shall have any further rights or incurred by Buyer, whether before or after the date of obligations pursuant to this Agreement, in connection other than as set forth herein with its due diligence investigation of the Propertyrespect to rights or obligations which survive termination, or (bii) enforce specific performance of this AgreementSeller’s obligations hereunder; provided, however, that any such action for specific performance shall be initiated all other remedies being herein expressly waived by Buyer, if at all, within sixty (60) days after that date on which the sale of the Property was scheduled to close hereunder and, if such action is not initiated within such 60-day period, then Buyer shall be deemed conclusively to have elected to waive the right to initiate such Purchaser except as provided in Section 6.3 and Section 6.4 below. Unless Purchaser has filed an action for specific performance, in which eventand such action is pending, Buyer's sole remedy Purchaser shall be not have the right or authority to terminate this Agreement and receive place a refund of the Initial Xxxxxxx Money Payment and the Xxxxxxx Money Deposit together with all other sums, if any, paid on account of this Agreement by Buyer to unrelated third-parties, including, without limitation, all amounts paid or incurred by Buyer, whether before or after the date of this Agreement, in connection with its due diligence investigation lis pendens against any portion of the Property; , and provided, further, Seller shall not be in default hereunder unless Purchaser hereby waives and until Buyer shall provide written notice to Seller of the basis for any such default and Seller has failed to cure such matter within ten (10) days of its receipt of such notice; provided, further, Buyer may not enforce specific performance against Seller if Seller is unable to deliver the Property subject only to the Permitted Exceptions (e.g., a third party places a cloud on title to the Property which Seller cannot remove prior to Closing). In no event shall Seller be liable to Buyer for any other actual, punitive, speculative, consequential or other damages, excepting only in the case of the inability of Seller to deliver the Property subject only to the Permitted Exceptions is due to a willful and bad faith overt act of Seller. No delay or omission in the exercise of releases any right or remedy accruing it may have under applicable law to Buyer upon file any default of Seller under this Agreement shall impair any lis pendens absent such right or remedy or be construed as waiver of such default or any default theretofore or thereafter occurring. The waiver by Buyer of any condition or event of default shall not be deemed to be a waiver of any other condition or of any prior or subsequent event of defaultpending action.

Default of Seller. In the event Seller is in default of fails to perform its obligations under pursuant to this AgreementAgreement for any reason except failure by Purchaser to perform hereunder or the permitted termination hereof by Purchaser or Seller in accordance with the express provisions hereof, BuyerPurchaser may (i) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing, as its exclusive remedies, in which event Purchaser shall be entitled to either (a) a refund of the full amount of the Initial Xxxxxxx Money Payment and receive back the Xxxxxxx Money Deposit (together with all other sumsinterest earned thereon) and, if anyadditionally, paid on account of this Agreement by Buyer Purchaser shall be entitled to unrelated recover from Seller the reasonable out-of-pocket third-parties, including, without limitation, all amounts paid or party expenses (reasonably documentation of which has been presented to Seller) incurred by Buyer, whether before or after the date of this Agreement, Purchaser in connection with its due diligence investigation of the Propertythis transaction, not to exceed Fifty Thousand and 00/100 Dollars ($50,000.00), or (bii) enforce specific performance of this Agreement; provided, however, that any such action for specific performance shall be initiated by Buyer, if at all, within sixty (60) days after that date on which the sale of the Property was scheduled to close hereunder and, if such action is not initiated within such 60-day period, then Buyer shall be deemed conclusively to have elected to waive the right to initiate such pursue an action for specific performance, in which eventprovided that any action for specific PURCHASE AGREEMENT BHDOCS 089930.000022 603549929.9 Purchase and Sale Agreement - Beacon/Energy (Xxxxxxx) performance shall be commenced within thirty (30) days after such default, Buyer's it being understood that if Purchaser fails to commence an action for specific performance within thirty (30) days after such default, Purchaser’s sole remedy shall be item (i) preceding. Purchaser shall have no right to terminate this Agreement and receive a refund of the Initial Xxxxxxx Money Payment and the Xxxxxxx Money Deposit together with all other sums, seek specific performance if any, paid on account of this Agreement by Buyer to unrelated third-parties, including, without limitation, all amounts paid or incurred by Buyer, whether before or after the date of this Agreement, in connection with its due diligence investigation of the Property; and provided, further, Seller shall not be in default prohibited from performing its obligations hereunder unless and until Buyer shall provide written notice by reason of any law, regulation or other legal requirement applicable to Seller of the basis for any such default and Seller has failed to cure such matter within ten (10) days of its receipt of such notice; provided, further, Buyer may not enforce specific performance against Seller if Seller is unable to deliver the Property subject only to the Permitted Exceptions (e.g., a third party places a cloud on title to the Property which Seller cannot remove prior to Closing)Seller. In no event shall Seller be liable to Buyer for any other actualspecial, punitive, speculative, speculative or consequential or other damages, excepting only . The remedies set forth in this Section 6.2 shall be the case sole and exclusive remedies available to Purchaser for Seller’s failure to close the transaction which is the subject of the inability of Seller to deliver the Property subject only to the Permitted Exceptions is due to a willful and bad faith overt act of Seller. No delay or omission in the exercise of any right or remedy accruing to Buyer upon any default of Seller under this Agreement shall impair any such right or remedy or be construed as waiver in accordance with the provisions of such default or any default theretofore or thereafter occurring. The waiver by Buyer of any condition or event of default shall not be deemed to be a waiver of any other condition or of any prior or subsequent event of defaultthis Agreement.

Default of Seller. In the event a Seller is in default of fails to perform its obligations under pursuant to this AgreementAgreement for any reason except failure by Purchaser to perform hereunder or the permitted termination hereof by Purchaser or Sellers in accordance with the express provisions hereof, BuyerPurchaser may (i) terminate this Agreement by giving Sellers timely written notice of such election prior to or at Closing, as its exclusive remedies, in which event Purchaser shall be entitled to either (a) a refund of the full amount of the Initial Xxxxxxx Money Payment and receive back the Xxxxxxx Money Deposit (together with all other sumsinterest earned thereon) and, if anyadditionally, paid on account of this Agreement by Buyer Purchaser shall be entitled to unrelated recover from Sellers the reasonable out-of-pocket third-parties, including, without limitation, all amounts paid or party expenses (reasonably documentation of which has been presented to Sellers) incurred by Buyer, whether before or after the date of this Agreement, Purchaser in connection with its due diligence investigation of the Propertythis transaction, not to exceed Seventy-Five Thousand and 00/100 Dollars ($75,000.00), or (bii) enforce pursue an action for specific performance of this Agreement; providedperformance, however, provided that any such action for specific performance shall be initiated by Buyer, if at all, commenced within sixty thirty (6030) days after such default, it being understood that date on which the sale of the Property was scheduled if Purchaser fails to close hereunder and, if such action is not initiated within such 60-day period, then Buyer shall be deemed conclusively to have elected to waive the right to initiate such commence an action for specific performanceperformance within thirty (30) days after such default, in which event, Buyer's Purchaser’s sole remedy shall be item (i) preceding. Purchaser shall have no right to terminate this Agreement and receive a refund of the Initial Xxxxxxx Money Payment and the Xxxxxxx Money Deposit together with all other sums, seek specific performance if any, paid on account of this Agreement by Buyer to unrelated third-parties, including, without limitation, all amounts paid or incurred by Buyer, whether before or after the date of this Agreement, in connection with its due diligence investigation of the Property; and provided, further, any Seller shall not be in default prohibited from performing its obligations hereunder unless and until Buyer shall provide written notice by reason of any law, regulation or other legal requirement applicable to Seller of the basis for any such default and Seller has failed to cure such matter within ten (10) days of its receipt of such notice; provided, further, Buyer may not enforce specific performance against Seller if Seller is unable to deliver the Property subject only to the Permitted Exceptions (e.g., a third party places a cloud on title to the Property which Seller cannot remove prior to Closing)Seller. In no event shall Seller Sellers be liable to Buyer for any other actualspecial, punitive, speculative, speculative or consequential or other damages, excepting only damages (the foregoing shall not limit Purchaser’s rights to recover actual damages under Section 5.3 above. The remedies set forth in this Section 6.2 shall be the case sole and exclusive remedies available to Purchaser for any Seller’s failure to close the transaction which is the subject of the inability of Seller to deliver the Property subject only to the Permitted Exceptions is due to a willful and bad faith overt act of Seller. No delay or omission in the exercise of any right or remedy accruing to Buyer upon any default of Seller under this Agreement shall impair any such right or remedy or be construed as waiver in accordance with the provisions of such default or any default theretofore or thereafter occurringthis Agreement. The waiver by Buyer of any condition or event of default shall not be deemed to be a waiver of any other condition or of any prior or subsequent event of default.6.3

Default of Seller. In the event Seller is in default of fails to perform its obligations under pursuant to Section 2.3, 2.4 or 2.8 or to consummate the Closing pursuant to this AgreementAgreement for any reason except failure of a closing condition in Seller’s favor set forth in this Agreement or except failure by Purchaser to perform hereunder or the permitted termination hereof by Purchaser or Seller in accordance with the express provisions hereof, BuyerPurchaser may elect to either (i) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing or within five (5) business days after the Closing in the event of Seller’s failure to consummate the Closing as set forth above, as its exclusive remedies, in which event Purchaser shall be entitled to either receive back the Eaxxxxx Xoney (a) a refund of the full amount of the Initial Xxxxxxx Money Payment and the Xxxxxxx Money Deposit together with all other sumsinterest earned thereon) and, if any, paid on account applicable the return of this Agreement any Contingency Payments required to be returned by Buyer Seller pursuant to unrelated third-parties, including, without limitation, all amounts paid Section 3.4 herein; or incurred (ii) seek specific performance to enforce Seller’s obligations hereunder by Buyer, whether before or notice to Seller of Purchaser’s election within 30 days after the date originally scheduled Closing Date and filing of this Agreement, in connection with its due diligence investigation of the Property, or (b) enforce specific performance of this Agreement; provided, however, that any such action for specific performance shall be initiated by Buyer, if at all, suit within sixty (60) days after that date on which the sale of the Property was scheduled Closing Date, and to receive reimbursement from the Seller of the reasonable out-of-pocket expenses incurred by the Purchaser as evidenced by documentation reasonably acceptable to Seller in connection with this Agreement in an amount not to exceed Two Hundred Fifty Thousand Dollars ($250,000) in the event that specific performance is unavailable as a result of Seller’s conveyance to a third party in violation of the terms of this Agreement. The remedies set forth in this Section 6.2 shall be the sole and exclusive remedy available to Purchaser for Seller’s failure to close hereunder and, if such action the transaction which is not initiated within such 60-day period, then Buyer shall be deemed conclusively to have elected to waive the right to initiate such action for specific performance, in which event, Buyer's sole remedy shall be to terminate this Agreement and receive a refund of the Initial Xxxxxxx Money Payment and the Xxxxxxx Money Deposit together with all other sums, if any, paid on account subject of this Agreement by Buyer to unrelated third-parties, including, without limitation, all amounts paid or incurred by Buyer, whether before or after in accordance with the date provisions of this Agreement, in connection with its due diligence investigation of the Property; and provided, further, Seller shall not be in default hereunder unless and until Buyer shall provide written notice to Seller of the basis for any such default and Seller has failed to cure such matter within ten (10) days of its receipt of such notice; provided, further, Buyer may not enforce specific performance against Seller if Seller is unable to deliver the Property subject only to the Permitted Exceptions (e.g., a third party places a cloud on title to the Property which Seller cannot remove prior to Closing). In no event shall Seller be liable to Buyer for any other actual, punitive, speculative, consequential or other damages, excepting only in the case of the inability of Seller to deliver the Property subject only to the Permitted Exceptions is due to a willful and bad faith overt act of Seller. No delay or omission in the exercise of any right or remedy accruing to Buyer upon any default of Seller under this Agreement shall impair any such right or remedy or be construed as waiver of such default or any default theretofore or thereafter occurring. The waiver by Buyer of any condition or event of default shall not be deemed to be a waiver of any other condition or of any prior or subsequent event of default.