Common use of Permitted Termination; Seller Default Clause in Contracts

Permitted Termination; Seller Default. If the sale of the Property is not consummated due to Seller’s default hereunder, Buyer shall be entitled, as its sole remedy, either (a) to terminate the Agreement, whereupon Buyer shall be entitled to receive the return of the Deposit and to receive from Seller in addition reimbursement of the documented out-of-pocket expenses incurred by Buyer in connection with the negotiation and execution of this Agreement, performing its due diligence hereunder and preparation for Closing, up to but not in excess of Two Hundred Thousand Dollars ($200,000.00) (the “Seller Default Reimbursement”), or (b) to enforce specific performance of this Agreement. Buyer expressly waives its rights to seek any damages in the event the sale of the Property is not consummated due to Seller’s default hereunder. In the event that Buyer terminates the Agreement as a result of Seller’s default with respect to its obligations hereunder, if Buyer fails, on or before thirty (30) days following the date upon which Closing was to have occurred, to deliver to Seller a written demand certified by a principal of Buyer for reimbursement of documented out-of-pocket expenses incurred by Buyer in the negotiation and execution of this Agreement, performing its due diligence hereunder and preparation for Closing, up to but not in excess of Two Hundred Thousand Dollars ($200,000.00), together with supporting documentation, then Buyer shall be deemed to have elected to terminate this Agreement and receive back the Deposit but without reimbursement for any of the expenses incurred by Buyer. If the Closing does not occur for any reason other than Buyer terminating this Agreement as a result of Seller’s default with respect to Seller’s obligations hereunder (and other than as expressly provided in Sections 3.1, 3.6, 3.8, 4.2, 5.1, 5.6(c), 7.8, and 10.2(b)), Buyer shall not be entitled to receive back any portion of the Deposit unless, on or before thirty (30) days following the date upon which Closing was to have occurred, Buyer makes a written demand to Escrow Agent in accordance with the provisions of Section 5.3 for return of the portion of the Deposit to which Buyer believes it is entitled, which demand shall state with specificity the reasons that Buyer believes it is entitled to receive return of said portion of the Deposit.

Permitted Termination; Seller Default. If the sale of the Real Property is not consummated due to the permitted termination of this Agreement by Buyer as herein expressly provided or the failure of a condition precedent to Buyer’s obligation to close as set forth in Section 9.8, the Deposit shall be returned to Buyer and Buyer will have no liability hereunder except as set forth in Sections 3.4, 3.5, 9.6, 10.13 and 10.19. If the sale of the Real Property is not consummated due to Seller’s default hereunder, Buyer shall be entitled, as its sole and exclusive remedy, either (a) to terminate the Agreementthis Agreement by delivery of notice of termination to Seller, whereupon (I) Buyer shall be entitled to receive the a return of the Deposit and (II) only if the remedy of specific performance is unavailable to receive from the Buyer, Seller in addition reimbursement shall reimburse Buyer for any and all out of the documented out-of-pocket expenses costs actually incurred by Buyer in connection with the negotiation negotiation, execution and execution performance of its Due Diligence under this Agreement, performing its due diligence hereunder including, without limitation, reasonable attorneys’ fees and preparation for Closingexpenses, up in an amount not to but not in excess of Two Hundred Thousand Dollars (exceed $200,000.00) (the “Seller Default Reimbursement”)100,000, and, upon such return and reimbursement neither party shall have any further rights or obligations hereunder, or (b) to enforce continue this Agreement pending Buyer’s action for specific performance of this Agreement. Buyer expressly waives its rights to seek any damages in the event the sale of the Property is not consummated due to Seller’s default hereunder. In the event that Buyer terminates the Agreement as a result of Seller’s default with respect to its obligations hereunder, if Buyer fails, on or before thirty (30) days following the date upon which Closing was to have occurred, to deliver to Seller a written demand certified by a principal of Buyer for reimbursement of documented out-of-pocket expenses incurred by Buyer in the negotiation and execution of this Agreement, performing its due diligence hereunder and preparation for Closing, up to but not in excess of Two Hundred Thousand Dollars ($200,000.00), together with supporting documentation, then Buyer shall be deemed to have elected to terminate this Agreement and receive back the Deposit but without reimbursement if Buyer fails to file suit for any of the expenses incurred specific performance against Seller in a court prescribed by Buyer. If the Closing does not occur for any reason other than Buyer terminating this Agreement as a result of Seller’s default with respect to Seller’s obligations hereunder (and other than as expressly provided in Sections 3.1, 3.6, 3.8, 4.2, 5.1, 5.6(c), 7.8, and 10.2(b)), Buyer shall not be entitled to receive back any portion of the Deposit unlessSection 10.7 hereof, on or before thirty one hundred twenty (30120) days following the date upon which Closing was to have occurred, . Buyer makes agrees that its failure to timely commence such an action for specific performance within such one hundred twenty (120) day period shall be deemed a written demand waiver by it of its right to Escrow Agent in accordance with the provisions commence an action for specific performance as well as a waiver by it of Section 5.3 for return any right it may have to file or record a notice of the lis pendens or notice of pendency of action or similar notice against any portion of the Deposit to which Buyer believes it is entitled, which demand shall state with specificity the reasons that Buyer believes it is entitled to receive return of said portion of the DepositReal Property.

Permitted Termination; Seller Default. If the sale of the Property is not consummated due to any permitted termination of this Agreement by Buyer as herein expressly provided, the Deposit shall be promptly returned to Buyer. If the sale of the Property is not consummated due to Seller’s default hereunder, Buyer shall be entitled, as its sole remedy, either (a) to terminate this Agreement by written notice to Seller, upon which the Agreement, whereupon Buyer Deposit shall be entitled promptly returned to receive the return of the Deposit and to receive from Seller in addition reimbursement of the documented out-of-pocket expenses incurred by Buyer in connection with the negotiation and execution of this Agreement, performing its due diligence hereunder and preparation for Closing, up to but not in excess of Two Hundred Thousand Dollars ($200,000.00) (the “Seller Default Reimbursement”), Buyer; or (b) to enforce specific performance of this Agreement. Except as otherwise provided in Article 6 Buyer expressly waives its rights to seek any damages in the event of Seller’s default hereunder; provided, however that if the sale of the Property is not consummated due to the occurrence of any one or more of the following: (i) fraud by Seller in connection with this Agreement; (ii) Seller’s default hereunder. In sale of the event that Property to another person during the contract period; (iii) after Buyer terminates the Agreement as a result of delivers its Notice to Proceed, Seller’s default failure to cause the removal of a non-monetary lien or encumbrance which was caused by Seller after the date when Buyer delivers its Notice to Proceed (and Seller fails to cause such exception or lien to be removed or insured over to Buyer’s satisfaction within five (5) business days following Seller’s receipt of written notice from Buyer of such failure), or (iv) on the scheduled Closing Date, Seller willfully fails to deliver the closing documents specified in Section 9.3, below, then, upon Buyer’s election of the remedy provided in clause (a) of this Section 5.1, Buyer shall be entitled to receive from Seller Buyer’s reasonable out-of-pocket costs actually incurred in connection with respect the negotiation of this Agreement and the investigation of the Property not to exceed $200,000 in the aggregate. Buyer shall be deemed to have elected to terminate this Agreement and receive back the Deposit and, to the extent provided above, be reimbursed for its obligations hereundercosts and expenses, if Buyer failsfails to file suit for specific performance against Seller in a court prescribed by Section 10.5 hereof, on or before thirty (30) days following the date upon which Closing was to have occurred, to deliver to Seller a written demand certified by a principal of Buyer for reimbursement of documented out-of-pocket expenses incurred by Buyer in the negotiation and execution of this Agreement, performing its due diligence hereunder and preparation for Closing, up to but not in excess of Two Hundred Thousand Dollars ($200,000.00), together with supporting documentation, then Buyer shall be deemed to have elected to terminate this Agreement and receive back the Deposit but without reimbursement for any of the expenses incurred by Buyer. If the Closing does not occur for any reason other than Buyer terminating this Agreement as a result of Seller’s default with respect to Seller’s obligations hereunder (and other than as expressly provided in Sections 3.1, 3.6, 3.8, 4.2, 5.1, 5.6(c), 7.8, and 10.2(b)), Buyer shall not be entitled to receive back any portion of the Deposit unless, on or before thirty (30) days following the date upon which Closing was to have occurred, Buyer makes a written demand to Escrow Agent in accordance with the provisions of Section 5.3 for return of the portion of the Deposit to which Buyer believes it is entitled, which demand shall state with specificity the reasons that Buyer believes it is entitled to receive return of said portion of the Deposit.

Permitted Termination; Seller Default. If the sale of the Property is not consummated due to the permitted termination of this Agreement by Buyer, including a failure of a closing condition as herein expressly provided, the Deposit shall be immediately returned to Buyer. If the sale of the Property is not consummated due to Seller’s 's default hereunder, Buyer shall be entitled, as its sole remedy, remedy (except as hereinafter provided) either (a) to terminate the Agreement, whereupon Buyer shall be entitled to Agreement and receive the return of the Deposit and to receive from Seller in addition reimbursement of the documented out-of-pocket expenses incurred by Buyer in connection with the negotiation and execution of this Agreement, performing its due diligence hereunder and preparation for Closing, up to but not in excess of Two Hundred Thousand Dollars ($200,000.00) (the “Seller Default Reimbursement”), or (b) to enforce specific performance of this AgreementAgreement and recover from Seller all its out-of-pocket costs of enforcement, including attorneys' fees and costs. Except as otherwise provided in this Section 5.1, Buyer expressly waives its rights to seek any damages in the event the sale of the Property is not consummated due Closing fails to Seller’s default hereunder. In the event that Buyer terminates the Agreement occur as a result of Seller’s 's default with respect to its obligations hereunder, if Buyer fails, on hereunder or before thirty (30) days following the date upon which Closing was to have occurred, to deliver to Seller a written demand certified by a principal of Buyer for reimbursement of documented out-of-pocket expenses incurred by Buyer in the negotiation and execution event Closing occurs as a result of this AgreementBuyer's exercise of its remedy of specific performance for Seller's default, performing its due diligence hereunder and preparation for Closingother than any claim based upon a breach of a representation or warranty or other covenant or obligation of Seller which, up subject to but not in excess the third sentence of Two Hundred Thousand Dollars ($200,000.00)Section 6.2 hereof, together with supporting documentation, then survives the Closing hereunder. Buyer shall be deemed to have elected to terminate this Agreement and receive back the Deposit but without reimbursement for any of the expenses incurred by Buyer. If the Closing does not occur for any reason other than Buyer terminating this Agreement as a result of Seller’s default with respect to Seller’s obligations hereunder (and other than as expressly provided in Sections 3.1, 3.6, 3.8, 4.2, 5.1, 5.6(c), 7.8, and 10.2(b)), subsection (a) of this Section 5.1 if Buyer shall not be entitled fails to receive back any portion of the Deposit unlessfile suit for specific performance against Seller in a court prescribed by Section 10.5 hereof, on or before thirty forty five (3045) days following the date upon which the Closing was to have occurredoccurred but for Seller's default. Notwithstanding the foregoing, if the Closing does not occur as a result of a willful breach or default by Seller in the performance of Seller's obligations hereunder, or as a result of any breach of any of Seller's representations or warranties where Seller had knowledge of such breach at the time the representation or warranties were made (or recertified), then if Buyer makes does not elect to pursue specific performance, Buyer, in addition to receiving a written demand to Escrow Agent in accordance with the provisions of Section 5.3 for return of the portion of the Deposit to which Buyer believes it is entitled, which demand shall state with specificity the reasons that Buyer believes it is entitled to receive return of said portion refund of the Deposit, shall also be entitled to reimbursement from Seller for the actual verifiable third party out-of-pocket costs incurred by Buyer in connection with this transaction, including due diligence costs, not to exceed $500,000 in the aggregate.

Permitted Termination; Seller Default. If the sale of the Property is not consummated due to Seller’s default hereunderthe permitted termination of this Agreement by Buyer as herein expressly provided, then the Deposit shall be returned to Buyer. Upon such termination, Buyer shall be entitled, will have no liability hereunder except as its sole remedy, either (a) to terminate the Agreement, whereupon Buyer shall be entitled to receive the return of the Deposit and to receive from Seller otherwise expressly stated in addition reimbursement of the documented out-of-pocket expenses incurred by Buyer in connection with the negotiation and execution of this Agreement, performing its due diligence hereunder and preparation for Closing, up to but not in excess of Two Hundred Thousand Dollars ($200,000.00) (the “Seller Default Reimbursement”), or (b) to enforce specific performance of this Agreement. Buyer expressly waives its rights to seek any damages in the event If the sale of the Property is not consummated due solely to Seller’s material default hereunder. In hereunder that is not cured within all applicable notice and cure periods, then Buyer shall have the event right, to elect, as its sole and exclusive remedy, to (a) terminate this Agreement by written notice to Seller, promptly after which the Deposit shall be returned to Buyer, (b) waive the default and proceed to close the transaction contemplated herein, or (c) provided that all of the conditions to Seller’s obligations to close have been satisfied and so long as Buyer terminates the Agreement as a result is not then in default of any of its material obligations under this Agreement, seek specific performance of Seller’s default obligations under this Agreement and record and maintain against the Property a notice of lis pendens in accordance with respect to its obligations hereunder, applicable law if Buyer failsfurther satisfies and continues to satisfy each of the following obligations: (i) Buyer shall have reasonably demonstrated that it is prepared to deliver into escrow all funds required by this Agreement in order for the Closing to occur, on or before thirty Buyer shall have deposited all funds required by this Agreement in order for the Closing to occur, and Buyer shall be ready and willing in all other respects to close escrow in accordance with the terms and conditions of this Agreement; and (30ii) Buyer shall have filed an action for specific performance (a “Specific Performance Action”) within sixty (60) days following of the date upon which the Closing was to have occurred. Notwithstanding anything to the contrary contained herein, to deliver to Seller a written demand certified by a principal of Buyer for reimbursement of documented out-of-pocket expenses incurred by Buyer in the negotiation and execution of this Agreement, performing its due diligence hereunder and preparation for Closing, up to but not in excess of Two Hundred Thousand Dollars ($200,000.00), together with supporting documentation, then Buyer shall be deemed to have elected to terminate this Agreement and receive back the Deposit but without reimbursement for any of the expenses incurred by Buyer. If the Closing does not occur for any reason other than Buyer terminating this Agreement as a result of Seller’s default with respect to Seller’s obligations hereunder (and other than as expressly provided in Sections 3.1, 3.6, 3.8, 4.2, 5.1, 5.6(c), 7.8, and 10.2(b)), Buyer shall not be entitled deemed in default unless and until Buyer provides Seller with written notice of such default and Seller fails to receive back any portion cure such default within three (3) business days of the Deposit unless, on or before thirty (30) days following the date upon which Closing was to have occurred, Buyer makes a its receipt of such written demand to Escrow Agent in accordance with the provisions of Section 5.3 for return of the portion of the Deposit to which Buyer believes it is entitled, which demand shall state with specificity the reasons that Buyer believes it is entitled to receive return of said portion of the Depositnotice.