Common use of Seller Default At or Before Closing Clause in Contracts

Seller Default At or Before Closing. If Seller refuses or fails, in any material respect, to perform any of its obligations or agreements hereunder when performance is required on or prior to the Closing Date, or if any of the Express Representations should be false in any material respect when made and Purchaser shall become aware of same on or prior to the Closing Date and Purchaser shall not have waived its claims with regard to same pursuant to this Agreement, then Purchaser shall give Seller written notice of such breach or default on or prior to the Closing Date and Seller shall have ten (10) Business Days from the date of receipt of such notice to cure such breach or default and the Closing Date shall be extended accordingly (subject to the parties’ mutual approval). If Seller fails to cure such breach or default within such ten (10) Business Day period, then Purchaser, as its sole and exclusive remedy, (i) may terminate this Agreement by notifying Seller and the Escrow Agent thereof, in which event neither party shall have any rights, duties, or obligations hereunder other than the obligations and rights set forth herein that expressly survive the termination of this Agreement, and the Escrow Agent shall return the Deposit to Purchaser, and Purchaser may xxx Seller for damages to recover Purchaser’s actual out-of-pocket, third party costs incurred in connection with this Agreement, (ii) may xxx for specific performance of the obligations of Seller hereunder; provided, however, that if Purchaser fails to file suit for specific performance within ninety (90) days after the scheduled Closing Date and to diligently pursue such suit, this Agreement shall terminate, in which event neither party shall have any rights, duties, or obligations hereunder other than the obligations and rights set forth herein that expressly survive the termination of this Agreement, and the Escrow Agent shall return the Deposit to Purchaser, or (iii) may waive the alleged default and proceed to Closing under this Agreement without adjustment of the Purchase Price. In no event shall Seller be liable for any consequential or punitive damages.

Seller Default At or Before Closing. If Seller refuses is in breach or fails, in any material respect, to perform default of any of its obligations or agreements hereunder when performance is required on or prior to the Closing Date, or if any of the Express Representations representations contained in Section 6.1 should be false in any material respect when made (subject to the provisions of Section 8.4) and Purchaser shall become actually aware of same on or prior to the Closing Date and Purchaser shall not have waived its claims with regard to same pursuant to this Agreement, then Purchaser shall give Seller written notice of such breach or default on or prior to the Closing Date and Seller shall have ten (10) Business Days from the date of receipt of such notice to cure such breach or default and the Closing Date shall be extended accordingly (subject to the parties’ mutual approval)accordingly. If Seller fails to cure such breach or default within such ten (10) Business Day period, then PurchaserPurchaser shall have the right, at its sole option and as its sole remedy, and Purchaser hereby waives its right to pursue any other remedy at law or in equity, and as Purchaser’s sole and exclusive remedy, Purchaser shall either (i) may To terminate this Agreement by notifying written notice to Seller and the Escrow Agent thereofAgent, in which event the Deposit shall be returned to Purchaser and Seller shall reimburse Purchaser for its actual costs incurred relating to this Agreement (not to exceed $100,000), whereupon neither party shall have any further rights, duties, duties or obligations hereunder other than the obligations and rights set forth herein that expressly survive the termination of this Agreement, and the Escrow Agent shall return the Deposit to Purchaser, and Purchaser may xxx Seller for damages to recover Purchaser’s actual out-of-pocket, third party costs incurred in connection with this Agreement, or (ii) may xxx for to pursue specific performance of the obligations of Seller hereunder; provided. As a condition precedent to Purchaser’s exercising any right it may have to bring an action for specific performance hereunder, however, that if Purchaser fails to file suit must commence such action for specific performance within ninety thirty (9030) days after the scheduled Closing Date and Date. Purchaser agrees that its failure to diligently pursue timely commence such suit, this Agreement an action for specific performance within such thirty (30) day period shall terminate, in which be deemed a waiver by it of its right to commence an action for specific performance as well as a waiver by it of any right it may have to file or record a notice of lis pendens or notice of pendency of action or similar notice against the Property. In no event neither party shall have any rights, dutiesPurchaser seek, or obligations hereunder other than Seller be liable for, any damages to Purchaser, including, without limitation, punitive or consequential damages.Seller Default From and After Closing. Subject to the obligations and rights limitations set forth herein that expressly survive the termination in Section 6.4 of this Agreement, if Seller is in breach or default of any of its obligations or agreements hereunder that survive the Closing when performance is required, including, without limitation, any obligations or agreements under the documents delivered at Closing by Seller pursuant to Section 9.2.1 of this Agreement, or if any of the Express Representations should be false in any material respect and Purchaser shall first become actually aware of same after the Closing Date, then Purchaser shall give Seller written notice of such breach or default of such obligation, agreement or representation hereunder prior to the expiration of the applicable survival period of such breach or default and Seller shall have thirty (30) days from the date of receipt of such notice to cure such breach or default. If Seller fails to cure such breach or default within such thirty (30) day period, and the Escrow Agent reasonably estimated losses or damages sustained as a result of Seller’s failure or inability to perform any of its obligations, agreements or Express Representations hereunder exceeds Twenty-Five Thousand and 00/100 Dollars ($25,000.00), then 29914974 v6 Seller shall return be liable for the Deposit actual direct damages suffered by Purchaser due to Purchasersuch uncured breach or default from the first dollar of loss. Notwithstanding anything to the contrary contained herein, or (iiii) may waive the alleged default and proceed to Closing under this Agreement without adjustment of the Purchase Price. In in no event shall Seller be liable to Purchaser for damages in an aggregate amount in excess of Five Hundred Thirty-Seven Thousand Seven Hundred Fifty and 00/100 Dollars ($537,750.00), (ii) Seller’s inability to satisfy a condition of this Agreement shall not be considered a default by Seller hereunder unless such inability results from the breach of any consequential of Seller’s representations set forth in Section 6.1 or punitive damagesthe breach of Seller’s express covenants and obligations hereunder, and (iii) if Purchaser has actual knowledge of a default by Seller on the Closing Date and Purchaser elects to close the transaction contemplated herein, Purchaser shall be deemed to have irrevocably waived such default and Seller shall not have any liability with respect to such default.

Seller Default At or Before Closing. If Seller refuses or fails, in any material respect, to perform any of its obligations or agreements hereunder when performance is required on or prior to the Closing Date, or if any of the Express Representations should be false in any material respect when made and Purchaser shall become aware of same on or prior to the Closing Date and Purchaser shall not have waived its claims with regard to same pursuant to this Agreement, then Purchaser shall give Seller written notice of such breach or default on or prior to the Closing Date and Seller shall have ten (10) Business Days from the date of receipt of such notice to cure such breach or default and the Closing Date shall be extended accordingly (subject to but in no event beyond the parties’ mutual Designated Closing Date without Seller’s approval). If Seller fails to cure such breach or default within such ten (10) Business Day period, then Purchaser, as its sole and exclusive remedy, (i) may terminate this Agreement by notifying Seller and the Escrow Agent thereof, in which event neither party shall have any rights, duties, duties or obligations hereunder other than the obligations and rights set forth herein that expressly survive the termination of this Agreement, and the Escrow Agent shall return the Deposit to Purchaser, and Purchaser may xxx Seller for damages to recover Purchaser’s actual out-of-pocket, third party costs incurred in connection with this Agreement, (ii) may xxx for specific performance of the obligations of Seller hereunder; provided, however, that if Purchaser fails to file suit for specific performance within ninety (90) days after the scheduled Closing Date and to diligently pursue such suit, this Agreement shall terminate, in which event neither party shall have any rights, duties, or obligations hereunder other than the obligations and rights set forth herein that expressly survive the termination of this Agreement, and the Escrow Agent shall return the Deposit to Purchaser, or (iii) may waive the alleged default and proceed to Closing under this Agreement without adjustment of the Purchase Price. In no event , provided, however, if specific performance is not available and Purchaser elects to terminate pursuant to clause (i) above, then, (1) if specific performance is not available because the Seller has conveyed the Premises to another party, then in addition to Purchaser’s right in clause (i) above to have the Deposit returned to the Purchaser, Purchaser shall be paid by Seller be liable any and all losses and damages (including, but not limited to, the difference between any consideration paid by such other party for the Premises and the Purchaser Price) incurred by Purchaser as a result of Purchaser’s breach, and (2) if specific performance is not available for any consequential or punitive damagesother reason, then, in addition to Purchaser’s right in clause (i) above to have the Deposit returned to the Purchaser, Purchaser shall be paid by Seller the amount of all out-of-pocket costs and expenses Purchaser has incurred in connection with the transaction contemplated herein, capped at $200,000, including, but not limited to all due diligence costs, legal fees, lender fees and deposits. For the avoidance of doubt, if Purchaser initially elects as its remedy as clause (ii) above, but such remedy is not available, Purchaser may at any time change its election to clause (i) above and be entitled to the additional damages as provided above.

Seller Default At or Before Closing. If Seller refuses or fails, in any material respect, to perform any of its obligations or agreements hereunder when performance is required on or prior to the Closing Date, or if any of the Express Representations should be false in any material respect when made and Purchaser shall become aware of same on or prior to the Closing Date and Purchaser shall not have waived its claims with regard to same pursuant to this Agreement, then Purchaser shall give Seller written notice of such breach or default on or prior to the Closing Date and Seller shall have ten (10) Business Days from the date of receipt of such notice to cure such breach or default and the Closing Date shall be extended accordingly (subject to the parties’ mutual approval)accordingly. If Seller fails to cure such breach or default within such ten (10) Business Day period, then Purchaser, as its sole and exclusive remedy, (i) may terminate this Agreement by notifying Seller and the Escrow Agent thereof, in which event neither party shall have any rights, duties, duties or obligations hereunder other than the obligations and rights set forth herein that expressly survive the termination of this Agreement, and the Escrow Agent shall return the Deposit to Purchaser, and Purchaser may xxx Seller for damages to recover Purchaser’s actual out-of-pocket, third party costs incurred in connection with this Agreement, (ii) may xxx for specific performance of the obligations of Seller hereunder; provided, however, that if Purchaser fails to file suit for specific performance within ninety (90) days after the scheduled Closing Date and to diligently pursue such suit, this Agreement shall terminate, in which event neither party shall have any rights, duties, duties or obligations hereunder other than the obligations and rights set forth herein that expressly survive the termination of this Agreement, and the Escrow Agent shall return the Deposit to Purchaser, or (iii) may waive the alleged default and proceed to Closing under this Agreement without adjustment of the Purchase Price. In no event shall Seller be liable for any consequential or punitive damages.

Seller Default At or Before Closing. If Seller refuses is in breach or fails, in any material respect, to perform default of any of its obligations or agreements hereunder when performance is required on or prior to the Closing Date, or if any of the Express Representations representations contained in Section 6.1 should be false in any material respect when made (subject to the provisions of Section 8.4) and Purchaser shall become actually aware of same on or prior to the Closing Date and Purchaser shall not have waived its claims with regard to same pursuant to this Agreement, then Purchaser shall give Seller written notice of such breach or default on or prior to the Closing Date and Seller shall have ten (10) Business Days from the date of receipt of such notice to cure such breach or default and the Closing Date shall be extended accordingly (subject to the parties’ mutual approval)accordingly. If Seller fails to cure such breach or default within such ten (10) Business Day period, then PurchaserPurchaser shall have the right, at its sole option and as its sole remedy, and Purchaser hereby waives its right to pursue any other remedy at law or in equity, and as Purchaser’s sole and exclusive remedy, Purchaser shall either (i) may to terminate this Agreement by notifying written notice to Seller and the Escrow Agent thereofAgent, in which event the Deposit shall be returned to Purchaser, whereupon neither party shall have any further rights, duties, duties or obligations hereunder other than the obligations and rights set forth herein that expressly survive the termination of this Agreement, and unless such default was caused by the Escrow Agent willful act of Seller, in which event Seller shall return also pay to Purchaser an amount equal to all actual, out of pocket expenses incurred by Purchaser in connection with the Deposit transactions contemplated by this Agreement (including, without limitation, any fees relating to PurchaserPurchaser financing, including any "rate lock" or loan application fees or costs), in an amount not to exceed an aggregate of $250,000.00 whereupon the parties shall be released from all further obligations under this Agreement, or (ii) seek specific performance of the Seller’s obligation hereunder to convey the Property to Seller, however, if, and only if, specific performance is not available as a remedy because Seller conveyed the Land to a third party during the term of this Agreement, Purchaser may xxx shall have the right to pursue an action against Seller for damages (including any right to recover Purchaser’s actual obtain lost profits or actual, damages from Seller), and Seller shall be responsible for all of the actual, out-of-pocket, third party pocket costs incurred by Purchaser in connection with the transactions contemplated by this Agreement, (ii) Agreement in an amount not to exceed an aggregate of $500,000.00. As a condition precedent to Purchaser’s exercising any right it may xxx have to bring an action for specific performance of the obligations of Seller hereunder; provided, however, that if Purchaser fails to file suit must commence such action for specific performance within ninety thirty (9030) days after the scheduled Closing Date and Date. Purchaser agrees that its failure to diligently pursue timely commence such suit, this Agreement an action for specific performance within such thirty (30) day period shall terminate, in which event neither party shall be deemed a waiver by it of its right to commence an action for specific performance as well as a waiver by it of any right it may have any rights, duties, to file or obligations hereunder other than record a notice of lis pendens or notice of pendency of action or similar notice against the obligations and rights set forth herein that expressly survive the termination of this Agreement, and the Escrow Agent shall return the Deposit to Purchaser, or (iii) may waive the alleged default and proceed to Closing under this Agreement without adjustment of the Purchase PriceProperty. In no event shall Purchaser seek, or Seller be liable for for, any damages to Purchaser, including, without limitation, punitive or consequential or punitive damages.

Seller Default At or Before Closing. If Seller refuses is in breach or fails, in any material respect, to perform default of any of its obligations or agreements hereunder when performance is required on or prior to the Closing Date, or if any of the Express Representations representations contained in Section 6.1 should be false in any material respect when made (subject to the provisions of Section 8.4), and Purchaser shall become actually aware of same on or prior to the Closing Date and Purchaser shall not have waived its claims with regard to same pursuant to this Agreement, then Purchaser shall give Seller written notice of such breach or default on or prior to the Closing Date and Seller shall have ten (10) Business Days from the date of receipt of such notice to cure such breach or default and the Closing Date shall be extended accordingly (subject to the parties’ mutual approval)accordingly. If Seller fails to cure such breach or default within such ten (10) Business Day period, then PurchaserPurchaser shall have the right, at its sole option and as its sole remedy, and Purchaser hereby waives its right to pursue any other remedy at law or in equity, and as Purchaser’s sole and exclusive remedy, Purchaser shall either (i) may to terminate this Agreement by notifying written notice to Seller and the Escrow Agent thereofAgent, in which event the Deposit shall be returned to Purchaser, whereupon neither party shall have any further rights, duties, duties or obligations hereunder other than the obligations and rights set forth herein that expressly survive the termination of this Agreement, and the Escrow Agent shall return the Deposit to Purchaser, and Purchaser may xxx Seller for damages to recover Purchaser’s actual out-of-pocket, third party costs incurred in connection with this Agreement, or (ii) may xxx for to pursue specific performance of the obligations of Seller hereunder; provided. As a condition precedent to Purchaser’s exercising any right it may have to bring an action for specific performance hereunder, however, that if Purchaser fails to file suit must commence such action for specific performance within ninety forty-five (9045) days after the scheduled Closing Date and Date. Purchaser agrees that its failure to diligently pursue timely commence such suit, this Agreement an action for specific performance within such forty-five (45) day period shall terminate, in which event neither party shall be deemed a waiver by it of its right to commence an action for specific performance as well as a waiver by it of any right it may have any rights, duties, to file or obligations hereunder other than record a notice of lis pendens or notice of pendency of action or similar notice against the obligations and rights set forth herein that expressly survive the termination of this Agreement, and the Escrow Agent shall return the Deposit to Purchaser, or (iii) may waive the alleged default and proceed to Closing under this Agreement without adjustment of the Purchase PriceProperty. In no event shall Purchaser seek, or Seller be liable for for, any damages to Purchaser, including, without limitation, punitive or consequential or punitive damages.

Seller Default At or Before Closing. If Seller refuses or fails, in any material respect, to perform any of its obligations or agreements hereunder when performance is required on or prior to the Closing Date, or if any of the Express Representations should be false in any material respect when made and Purchaser shall become aware of same on or prior to the Closing Date and Purchaser shall not have waived its claims with regard to same pursuant to this Agreement, then Purchaser shall give Seller written notice of such breach or default on or prior to the Closing Date and Seller shall have ten (10) Business Days from the date of receipt of such notice to cure such breach or default and the Closing Date shall be extended accordingly (subject to the parties’ mutual approval)accordingly. If Seller fails to cure such breach or default within such ten (10) Business Day period, then Purchaser, as its sole and exclusive remedy, (i) may terminate this Agreement by notifying Seller and the Escrow Agent thereof, in which event neither party shall have any rights, duties, duties or obligations hereunder other than the obligations and rights set forth herein that expressly survive the termination of this Agreement, and the Escrow Agent shall return the Deposit to Purchaser, Purchaser and Seller shall reimburse Purchaser may xxx Seller for damages to recover Purchaser’s its actual out-of-pocket, pockets cost paid to third party costs incurred parties in connection with this Agreementtransaction not to exceed Two Hundred Thousand Dollars ($200,000.00), (ii) may xxx for specific performance of the obligations of Seller hereunder; provided, however, that if Purchaser fails to file suit for specific performance within ninety (90) days after the scheduled Closing Date and to diligently pursue such suit, this Agreement shall terminate, in which event neither party shall have any rights, duties, duties or obligations hereunder other than the obligations and rights set forth herein that expressly survive the termination of this Agreement, and the Escrow Agent shall return the Deposit to Purchaser, or (iii) may waive the alleged default and proceed to Closing under this Agreement without adjustment of the Purchase Price. In no event shall Seller be liable for any consequential or punitive damages.

Seller Default At or Before Closing. If Seller refuses is in breach or fails, in any material respect, to perform default of any of its obligations or agreements hereunder when performance is required on or prior to the Closing Date, or if any of the Express Representations representations contained in Section 6.1 should be false in any material respect when made (subject to the provisions of Section 8.4) and Purchaser shall become actually aware of same on or prior to the Closing Date and Purchaser shall not have waived its claims with regard to same pursuant to this Agreement, then Purchaser shall give Seller written notice of such breach or default on or prior to the Closing Date and Seller shall have ten (10) Business Days from the date of receipt of such notice to cure such breach or default and the Closing Date shall be extended accordingly (subject to the parties’ mutual approval)accordingly. If Seller fails to cure such breach or default within such ten (10) Business Day period, then PurchaserPurchaser shall have the right, at its sole option and as its sole remedy, and Purchaser hereby waives its right to pursue any other remedy at law or in equity, and as Purchaser’s sole and exclusive remedy, to either (i) may terminate this Agreement by notifying written notice to Seller and the Escrow Agent thereofAgent, in which event the Deposit shall be returned to Purchaser, Purchaser shall be entitled to receive from Seller (and to bring an action against Seller if Seller fails to comply) for reimbursement of Purchaser's direct third party out-of-pocket costs and expenses actually incurred in connection with this Agreement, including reasonable attorneys’ fees, and the inspection, acquisition and financing of the Property, including, without limitation, any forfeited good faith and/or rate lock deposits, in a maximum amount not to exceed an aggregate of One Hundred Thousand and 00/100 Dollars ($100,000.00), whereupon neither party shall have any further rights, duties, duties or obligations hereunder other than the obligations and rights set forth herein that expressly survive the termination of this Agreement, and the Escrow Agent shall return the Deposit to Purchaser, and Purchaser may xxx Seller for damages to recover Purchaser’s actual out-of-pocket, third party costs incurred in connection with this Agreement, or (ii) may xxx for pursue specific performance of the obligations of Seller hereunder; provided. As a condition precedent to Purchaser’s exercising any right it may have to bring an action for specific performance hereunder, however, that if Purchaser fails to file suit must commence such action for specific performance within ninety thirty (9030) days after the scheduled Closing Date Date. Purchaser agrees that its failure to timely commence such an action for specific performance within such thirty (30) day period shall be deemed a waiver by it of its right to commence an action for specific performance as well as a waiver by it of any right it may have to file or record a notice of lis pendens or notice of pendency of action or similar notice against the Property. The foregoing notwithstanding, if the Purchaser elects to undertake an action for specific performance and such action is barred or otherwise unavailable as a result of the wrongful or intentional bad acts of Seller, including, but not limited to, the conveyance of title to diligently pursue the Property to a party other than Purchaser after the Effective Date, Purchaser shall be entitled to recover its actual damages in connection with such suitdefault; provided, this Agreement shall terminatehowever, in which any such case the maximum recovery that Purchaser may receive will be capped at $760,000. Except as specifically set forth above, in no event neither party shall Purchaser seek, or Seller be liable for, any damages to Purchaser, including, without limitation, punitive or consequential damages; except that Purchaser shall have any rights, duties, or obligations hereunder other than the obligations and rights set forth herein that expressly survive the termination right to pursue an action against Seller for Purchaser’s actual damages suffered on account of a default by Seller under Section 12.2 of this Agreement. The foregoing part of this Section 11.1 to the contrary notwithstanding, Seller shall not be entitled to any notice and right to cure with respect to those matters to be performed by Seller on the Escrow Agent shall return the Deposit to Purchaser, or (iii) may waive the alleged default Closing Date and proceed to Closing under this Agreement without adjustment as a part of the Purchase Price. In no event shall Seller be liable for any consequential or punitive damagesClosing.