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 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 default hereunder, Buyer shall be entitled, as its sole remedy (except as hereinafter provided) either (a) to terminate the Agreement and receive the return of the Deposit or (b) to enforce specific performance of this Agreement 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 Closing fails to occur as a result of Seller's default hereunder or in the event Closing occurs as a result of Buyer's exercise of its remedy of specific performance for Seller's default, other than any claim based upon a breach of a representation or warranty or other covenant or obligation of Seller which, subject to the third sentence of Section 6.2 hereof, survives the Closing hereunder. Buyer shall be deemed to have elected to terminate this Agreement and receive back the Deposit as provided in subsection (a) of this Section 5.1 if Buyer fails to file suit for specific performance against Seller in a court prescribed by Section 10.5 hereof, on or before forty five (45) days following the date upon which the Closing was to have occurred 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 does not elect to pursue specific performance, Buyer, in addition to receiving a 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 the permitted termination of this Agreement by Buyer, including a failure of a closing condition Buyer as herein expressly provided, then the Deposit shall be immediately returned to Buyer. Upon such termination, Buyer will have no liability hereunder except as otherwise expressly stated in this Agreement. If the sale of the Property is not consummated due solely to Seller's ’s material default hereunderhereunder that is not cured within all applicable notice and cure periods, then Buyer shall be entitledhave the right, to elect, as its sole remedy (except as hereinafter provided) either and exclusive remedy, to (a) terminate this Agreement by written notice to terminate the Agreement and receive the return of Seller, promptly after which the Deposit or shall be returned to Buyer, (b) waive the default and proceed to enforce 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 is not then in default of any of its material obligations under this Agreement, seek specific performance of Seller’s obligations under this Agreement and recover from Seller record and maintain against the Property a notice of lis pendens in accordance with applicable law if Buyer further 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 its out-of-pocket costs of enforcement, including attorneys' fees and costs. Except as otherwise provided funds required by this Agreement in this Section 5.1order for the Closing to occur, Buyer expressly waives its rights to seek any damages shall have deposited all funds required by this Agreement in the event Closing fails to occur as a result of Seller's default hereunder or in the event Closing occurs as a result of Buyer's exercise of its remedy of specific performance order for Seller's default, other than any claim based upon a breach of a representation or warranty or other covenant or obligation of Seller which, subject to the third sentence of Section 6.2 hereof, survives the Closing hereunder. to occur, and Buyer shall be deemed ready and willing in all other respects to have elected to terminate this Agreement close escrow in accordance with the terms and receive back the Deposit as provided in subsection (a) conditions of this Section 5.1 if Agreement; and (ii) Buyer fails to file suit shall have filed an action for specific performance against Seller in (a court prescribed by Section 10.5 hereof, on or before forty five “Specific Performance Action”) within sixty (4560) days following of the date upon which the Closing was to have occurred but for Seller's defaultoccurred. Notwithstanding anything to the foregoingcontrary contained herein, if the Closing does Seller shall not occur as a result of a willful breach or be deemed in default by unless and until Buyer provides 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 with written notice of such breach at the time the representation or warranties were made default and Seller fails to cure such default within three (or recertified), then if Buyer does not elect to pursue specific performance, Buyer, in addition to receiving a refund 3) business days 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 aggregateits receipt of such written notice.

Permitted Termination; Seller Default. If the sale of the Property is not consummated due to the any permitted termination of this Agreement by Buyer, including a failure of a closing condition Buyer as herein expressly provided, the Deposit shall be immediately promptly 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 (except as hereinafter provided) remedy, either (a) to terminate the this Agreement and receive the return of by written notice to Seller, upon which the Deposit shall be promptly returned to Buyer; or (b) to enforce specific performance of this Agreement and recover from Seller all its out-of-pocket costs of enforcement, including attorneys' fees and costsAgreement. Except as otherwise provided in this Section 5.1, Article 6 Buyer expressly waives its rights to seek any damages in the event Closing 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 sale of the Property to another person during the contract period; (iii) after Buyer delivers its Notice to Proceed, Seller’s 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 occur as a result 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 Seller's default hereunder 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 the negotiation of this Agreement and the investigation of the Property not to exceed $200,000 in the event Closing occurs as a result of Buyer's exercise of its remedy of specific performance for Seller's default, other than any claim based upon a breach of a representation or warranty or other covenant or obligation of Seller which, subject to the third sentence of Section 6.2 hereof, survives the Closing hereunderaggregate. Buyer shall be deemed to have elected to terminate this Agreement and receive back the Deposit as and, to the extent provided in subsection (a) of this Section 5.1 above, be reimbursed for its costs and expenses, if Buyer fails to file suit for specific performance against Seller in a court prescribed by Section 10.5 hereof, on or before forty five thirty (4530) days following the date upon which the Closing was to have occurred 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 does not elect to pursue specific performance, Buyer, in addition to receiving a 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 aggregateoccurred.

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 (except as hereinafter provided) remedy, either (a) to terminate the Agreement and 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 and recover from Seller all its out-of-pocket costs of enforcement, including attorneys' fees and costsAgreement. Except as otherwise provided in this Section 5.1, Buyer expressly waives its rights to seek any damages in the event Closing fails the sale of the Property is not consummated due to occur Seller’s default hereunder. In the event that Buyer terminates the Agreement as a result of Seller's ’s default hereunder 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 event Closing occurs as a result negotiation and execution of Buyer's exercise this Agreement, performing its due diligence hereunder and preparation for Closing, up to but not in excess of its remedy of specific performance for Seller's defaultTwo Hundred Thousand Dollars ($200,000.00), other than any claim based upon a breach of a representation or warranty or other covenant or obligation of Seller whichtogether with supporting documentation, subject to the third sentence of Section 6.2 hereof, survives the Closing hereunder. 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 subsection (a) 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 this Section 5.1 if Buyer fails to file suit for specific performance against Seller in a court prescribed by Section 10.5 hereofthe Deposit unless, on or before forty five thirty (4530) days following the date upon which the Closing was to have occurred but occurred, Buyer makes a written demand to Escrow Agent in accordance with the provisions of Section 5.3 for Seller's default. Notwithstanding return of the foregoingportion of the Deposit to which Buyer believes it is entitled, if which demand shall state with specificity the Closing does not occur as a result reasons that Buyer believes it is entitled to receive return 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 does not elect to pursue specific performance, Buyer, in addition to receiving a refund said portion 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 the permitted termination of this Agreement by Buyer, including a failure of a closing condition Buyer as herein expressly provided, then the Deposit shall be immediately returned to Buyer; provided, however, the Initial Deposit shall not be returned to Buyer unless the permitted termination of this Agreement specifically states that the Deposit is to be returned to Buyer or the Agreement states that only the Additional Deposit is to be returned to Buyer. Upon such termination, Buyer will have no liability hereunder except as otherwise expressly stated in this Agreement. If the sale of the Property is not consummated due solely to Seller's ’s material default hereunderhereunder that is not cured within all applicable notice and cure periods, then Buyer shall be entitledhave the right, to elect, as its sole remedy (except as hereinafter provided) either and exclusive remedy, to (a) terminate this Agreement by written notice to terminate the Agreement and receive the return of Seller, promptly after which the Deposit or shall be returned to Buyer, (b) waive the default and proceed to enforce specific performance of close the (i) Buyer shall have reasonably demonstrated that it is prepared to deliver into escrow all funds required by this Agreement and recover from Seller all its out-of-pocket costs of enforcement, including attorneys' fees and costs. Except as otherwise provided in this Section 5.1order for the Closing to occur, Buyer expressly waives its rights to seek any damages shall have deposited all funds required by this Agreement in the event Closing fails to occur as a result of Seller's default hereunder or in the event Closing occurs as a result of Buyer's exercise of its remedy of specific performance order for Seller's default, other than any claim based upon a breach of a representation or warranty or other covenant or obligation of Seller which, subject to the third sentence of Section 6.2 hereof, survives the Closing hereunder. to occur, and Buyer shall be deemed ready and willing in all other respects to have elected to terminate this Agreement close escrow in accordance with the terms and receive back the Deposit as provided in subsection (a) conditions of this Section 5.1 if Agreement; and (ii) Buyer fails to file suit shall have filed an action for specific performance against Seller in (a court prescribed by Section 10.5 hereof, on or before forty five “Specific Performance Action”) within sixty (4560) days following of the date upon which the Closing was to have occurred but for Seller's defaultoccurred. Notwithstanding anything to the foregoingcontrary contained herein, if the Closing does Seller shall not occur as a result of a willful breach or be deemed in default by unless and until Buyer provides 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 with written notice of such breach at the time the representation or warranties were made default and Seller fails to cure such default within five (or recertified), then if Buyer does not elect to pursue specific performance, Buyer, in addition to receiving a refund 5) business days 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 aggregateits receipt of such written notice.