Common use of Seller’s Default and Purchaser’s Remedies Clause in Contracts

Seller’s Default and Purchaser’s Remedies. (a) If Seller fails or refuses to timely comply with Seller’s obligations under this Agreement or any Affiliate of Seller fails or refuses to timely comply with its obligations with respect to the Block 21 Service Company Contract or is unable to do so as the result of Seller’s or Seller’s Affiliates act or failure to act, or Seller breaches any of its representations or warranties hereunder, or if Xxxxxxx Xxxxx 00 Xxxxxxxxxxx breaches any of its representations or warranties under the Block 21 Service Company Contract, and if Purchaser is not in default of any of Purchaser’s material obligations under this Agreement or under the Block 21 Service Company Contract, then, subject to Sections 6.01(f) and (g) (and any corresponding provisions of the Block 21 Service Company Contract), Purchaser may, as Purchaser’s sole and exclusive remedy, either: (i) terminate this Agreement by giving Seller written notice of such election prior to or at Closing in which event this Agreement shall terminate, the Xxxxxxx Money shall be returned to Purchaser; or (ii) enforce specific performance of Seller’s obligations under this Agreement if and only if Purchaser complies with all of the preconditions and requirements set out in Section 8.02(c) hereinbelow. If Seller delivers to Purchaser, at or prior to the Closing, a written notice of any breach of representation, warranty or covenant by Seller which involves matters outside of Seller’s control and Purchaser elects to proceed with the Closing, then the Closing will occur without any reduction in the Purchase Price and Purchaser shall be deemed to have waived any claims Purchaser might otherwise have had against Seller with respect to any matters which are disclosed in Seller’s written notice. In addition to the foregoing Purchaser may recover from Seller all costs and expenses, including reasonable attorney’s fees, incurred in connection with Purchaser’s enforcement of Seller’s obligations under this Agreement or the recovery of the Xxxxxxx Money deposited by Purchaser under this Agreement. (b) If this Agreement is terminated and Purchaser has a right to receive the Xxxxxxx Money, then Seller shall execute any and all documents required by the Title Company in order to release the Xxxxxxx Money to Purchaser. (c) Notwithstanding any provision in this Agreement to the contrary, it is specifically agreed and understood that, for Purchaser to enforce specific performance of Seller’s obligations under this Agreement or to place a lis pendens on the Property or otherwise encumber the Property Purchaser must (i) timely tender substantial performance under this Agreement, except to the extent such performance is frustrated by any action or failure to act by (x) Seller, (y) any other Seller Party, or, (z) if resulting from or related to the Seller default giving rise to Purchaser’s effort to enforce specific performance, the Title Company, Starwood, Xxxxxxx or the loan servicer, and following such tender of substantial performance by Purchaser, Seller fails or refuses to close the transaction evidenced by this Agreement; and (ii) Purchaser institutes, within thirty (30) days after the Closing Deadline, an action in a court with jurisdiction and in the venue specified under this Agreement (the “Court”), seeking to enforce specific performance of Seller’s obligations under this Agreement. If Purchaser satisfies the foregoing requirements, then all sums held by the Title Company shall be tendered to the Court and will be retained by the Court until all disputes between the Parties related to this Agreement have been resolved, either by final non-appealable judgment or by final binding settlement agreement between the Parties. Each Party agrees to execute and deliver such joint instructions, joint motions and other instruments as may be necessary to effectuate the transfer of the funds from the Title Company to the Court contemplated under this Section 8.02(c). PURCHASER HERBY WAIVES ALL RIGHTS WHICH PURCHASER HAS OR MAY HAVE TO ENFORCE SPECIFIC PERFORMANCE OF SELLER’S OBLIGATIONS UNDER THIS AGREEMENT AND/OR TO PLACE A LIS PENDENS ON THE PROPERTY WITHOUT SATISFYING THE REQUIREMENTS AND CONDITIONS SET OUT IN THIS SECTION 8.02(c). (d) For purposes of this Agreement and the Block 21 Service Company Contract, the term “Covered Matters” means and refers to any breach of an express representation, warranty or covenant by Seller or Xxxxxxx Xxxxx 00 Xxxxxxxxxxx under this Agreement or the Block 21 Service Company Contract or under any of the closing documents of either this Agreement or the Block 21 Service Company Contract which breach: (1) is in existence on the Closing Date; and (2) is not within the actual knowledge of Purchaser or disclosed by the Property Information. Notwithstanding any provision in this Agreement to the contrary, Purchaser’s rights to recover damages from Seller and Xxxxxxx Xxxxx 00 Investments for a Covered Matter are subject to the following limitations, agreements and requirements:

Seller’s Default and Purchaser’s Remedies. (a) If Seller fails or refuses to timely comply with Seller’s obligations under this Agreement or any Affiliate of Seller fails or refuses to timely comply with its obligations with respect to the Block 21 Service Company Contract or is unable to do so as the result of Seller’s or Seller’s Affiliates act or failure to act, or Seller breaches any of its representations or warranties hereunder, or if Xxxxxxx Xxxxx 00 Xxxxxxxxxxx breaches any of its representations or warranties under the Block 21 Service Company Contract, and if Purchaser is not in default of any of Purchaser’s material obligations under this Agreement or under the Block 21 Service Company Contract, then, subject to Sections 6.01(f) and (g) (and any corresponding provisions of the Block 21 Service Company Contract), Purchaser may, as Purchaser’s sole and exclusive remedy, either: (i) terminate this Agreement by giving Seller written notice of such election prior to or at Closing in which event this Agreement shall terminate, the Xxxxxxx Money shall be returned to Purchaser; or (ii) enforce specific performance of Seller’s obligations under this Agreement if and only if Purchaser complies with all of the preconditions and requirements set out in Section 8.02(c) hereinbelow. If Seller delivers to Purchaser, at or prior to the Closing, a written notice of any breach of representation, warranty or covenant by Seller which involves matters outside of Seller’s control and Purchaser elects to proceed with the Closing, then the Closing will occur without any reduction in the Purchase Price and Purchaser shall be deemed to have waived any claims Purchaser might otherwise have had against Seller with respect to any matters which are disclosed in Seller’s written notice. In addition to the foregoing Purchaser may recover from Seller all costs and expenses, including reasonable attorney’s fees, incurred in connection with Purchaser’s enforcement of Seller’s obligations under this Agreement or the recovery of the Xxxxxxx Money deposited by Purchaser under this Agreement. (b) If this Agreement is terminated and Purchaser has a right to receive the Xxxxxxx Money, then Seller shall execute any and all documents required by the Title Company in order to release the Xxxxxxx Money to Purchaser.. {N4542684.1} 44 (c) Notwithstanding any provision in this Agreement to the contrary, it is specifically agreed and understood that, for Purchaser to enforce specific performance of Seller’s obligations under this Agreement or to place a lis pendens on the Property or otherwise encumber the Property Purchaser must (i) timely tender substantial performance under this Agreement, except to the extent such performance is frustrated by any action or failure to act by (x) Seller, (y) any other Seller Party, or, (z) if resulting from or related to the Seller default giving rise to Purchaser’s effort to enforce specific performance, the Title Company, Starwood, Xxxxxxx or the loan servicer, and following such tender of substantial performance by Purchaser, Seller fails or refuses to close the transaction evidenced by this Agreement; and (ii) Purchaser institutes, within thirty (30) days after the Closing Deadline, an action in a court with jurisdiction and in the venue specified under this Agreement (the “Court”), seeking to enforce specific performance of Seller’s obligations under this Agreement. If Purchaser satisfies the foregoing requirements, then all sums held by the Title Company shall be tendered to the Court and will be retained by the Court until all disputes between the Parties related to this Agreement have been resolved, either by final non-appealable judgment or by final binding settlement agreement between the Parties. Each Party agrees to execute and deliver such joint instructions, joint motions and other instruments as may be necessary to effectuate the transfer of the funds from the Title Company to the Court contemplated under this Section 8.02(c). PURCHASER HERBY WAIVES ALL RIGHTS WHICH PURCHASER HAS OR MAY HAVE TO ENFORCE SPECIFIC PERFORMANCE OF SELLER’S OBLIGATIONS UNDER THIS AGREEMENT AND/OR TO PLACE A LIS PENDENS ON THE PROPERTY WITHOUT SATISFYING THE REQUIREMENTS AND CONDITIONS SET OUT IN THIS SECTION 8.02(c). (d) For purposes of this Agreement and the Block 21 Service Company Contract, the term “Covered Matters” means and refers to any breach of an express representation, warranty or covenant by Seller or Xxxxxxx Xxxxx 00 Xxxxxxxxxxx under this Agreement or the Block 21 Service Company Contract or under any of the closing documents of either this Agreement or the Block 21 Service Company Contract which breach: (1) is in existence on the Closing Date; and (2) is not within the actual knowledge of Purchaser or disclosed by the Property Information. Notwithstanding any provision in this Agreement to the contrary, Purchaser’s rights to recover damages from Seller and Xxxxxxx Xxxxx 00 Investments for a Covered Matter are subject to the following limitations, agreements and requirements:

Seller’s Default and Purchaser’s Remedies. (a) If Seller fails or refuses to timely comply with Seller’s 's obligations under this Agreement or any Affiliate of Seller fails or refuses to timely comply with its obligations with respect to the Block 21 Service Company Contract or is unable to do so as the result of Seller’s or Seller’s Affiliates act or failure to act, or Seller breaches any of its representations or warranties hereunder, or if Xxxxxxx Xxxxx 00 Xxxxxxxxxxx breaches any of its representations or warranties under the Block 21 Service Company ContractAgreement, and if Purchaser is not in default of any of Purchaser’s material 's obligations under this Agreement or under the Block 21 Service Company ContractAgreement, then, subject to Sections 6.01(f) and (g) (and any corresponding provisions of the Block 21 Service Company Contract), then Purchaser may, as Purchaser’s 's sole and exclusive remedy, either: (i) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing in which event this Agreement shall terminate, the Xxxxxxx Money shall be returned to PurchaserClosing; or (ii) enforce specific performance of Seller’s 's obligations under this Agreement if and only if Purchaser complies with all of the preconditions and requirements set out in Section 8.02(c7.02(b) hereinbelow. If Seller delivers to Purchaser, at or prior to the Closing, a written notice of any breach of representation, warranty or covenant by Seller which involves matters outside of Seller’s control and Purchaser elects to proceed with the Closing, then the Closing will occur without any reduction in the Purchase Price and Purchaser shall be deemed to have waived any claims Purchaser might otherwise have had against Seller with respect to any matters which are disclosed in Seller’s written notice. In addition to the foregoing foregoing, Purchaser may recover from Seller all reasonable costs and expenses, including reasonable attorney’s attorneys' fees, incurred in connection with Purchaser’s 's enforcement of Seller’s 's obligations under this Agreement or the recovery of the Xxxxxxx Earnest Money deposited by Purchaser Puxxxxxxx under this Agreement. Except as set out in the immediately preceding sentence, Purchaser will not be entitled to recover any damages from Seller. (b) If this Agreement is terminated and Purchaser has a right to receive the Xxxxxxx Money, then Seller shall execute any and all documents required by the Title Company in order to release the Xxxxxxx Money to Purchaser. (c) Notwithstanding any provision in this Agreement to the contrary, it is specifically agreed and understood that, for that Purchaser will not have the right to enforce specific performance of Seller’s 's obligations under this Agreement or to place a lis pendens on the Property or otherwise encumber the Property Purchaser must in any way until and unless: (i) Purchaser timely tender substantial tenders full performance under this Agreement, except Agreement by delivering to the extent such performance is frustrated by any action or failure to act by (x) Seller, (y) any other Seller Party, or, (z) if resulting from or related to the Seller default giving rise to Purchaser’s effort to enforce specific performance, the Title Company, Starwoodon or before the Closing Date, Xxxxxxx fully executed originals of all documents required to be executed by Purchaser under the terms and provisions of this Agreement, together with cash or other readily available funds, or an "Acceptable Financing Commitment" (hereinafter defined), or a combination of cash or other readily available funds and an "Acceptable Financing Commitment" in an amount sufficient to cover the loan servicer, Purchase Price plus all expenses which are required to be paid by Purchaser under the terms and following provisions of this Agreement; (ii) despite such tender of substantial full performance by PurchaserPurchaser at the Closing, Seller fails or refuses to close the transaction evidenced by this Agreement; and (iiiii) Purchaser institutes, within thirty (30) calendar days after the Closing DeadlineDate, an action under the arbitration agreement referenced in a court with jurisdiction and in the venue specified under Section 7.06 of this Agreement (the “Court”"Arbitration Agreement"), seeking to enforce specific performance of Seller’s 's obligations under this Agreement. If Purchaser satisfies the foregoing requirements, then all sums held by the Title Company shall will be tendered considered to have provided an "Acceptable Financing Commitment" only if Purchaser provides evidence to the Court and will be retained Arbitrators which the Arbitrators determine is adequate to establish that the written financing commitment provided by the Court until all disputes between the Parties related to this Agreement have been resolved, either by final non-appealable judgment or by final binding settlement agreement between the Parties. Each Party agrees to execute and deliver such joint instructions, joint motions and other instruments as may be necessary to effectuate the transfer of the funds from the Title Company to the Court contemplated under this Section 8.02(c). PURCHASER HERBY WAIVES ALL RIGHTS WHICH PURCHASER HAS OR MAY HAVE TO ENFORCE SPECIFIC PERFORMANCE OF SELLER’S OBLIGATIONS UNDER THIS AGREEMENT AND/OR TO PLACE A LIS PENDENS ON THE PROPERTY WITHOUT SATISFYING THE REQUIREMENTS AND CONDITIONS SET OUT IN THIS SECTION 8.02(c). (d) For purposes of this Agreement and the Block 21 Service Company Contract, the term “Covered Matters” means and refers to any breach of an express representation, warranty or covenant by Seller or Xxxxxxx Xxxxx 00 Xxxxxxxxxxx under this Agreement or the Block 21 Service Company Contract or under any of the closing documents of either this Agreement or the Block 21 Service Company Contract which breachPurchaser: (1i) is in existence on issued by a lending institution which has adequate financial strength and adequate readily available funds to satisfy its obligations under the Closing Datefinancing commitment; and (2ii) is not within prepared in form and with content providing adequate assurance of availability of funds for the actual knowledge closing of Purchaser or disclosed by the sale and purchase of the Property Information. Notwithstanding any provision (and in this Agreement to regard, it is expressly agreed and understood that the contrary, Purchaser’s rights to recover damages from Seller and Xxxxxxx Xxxxx 00 Investments for a Covered Matter are obligations of the lender under such financing commitment may not be subject to any conditions or requirements other than the following limitations, agreements closing of the sale and requirements:purchase of the Property).

Seller’s Default and Purchaser’s Remedies. (a) If In the event of a material default by Seller fails or refuses to timely comply with Seller’s obligations under this Agreement or any Affiliate of Seller fails or refuses to timely comply with its obligations with respect to the Block 21 Service Company Contract or is unable to do so as the result of Seller’s or Seller’s Affiliates act or failure to act, or Seller breaches any of its representations or warranties hereunder, or if Xxxxxxx Xxxxx 00 Xxxxxxxxxxx breaches any of its representations or warranties under the Block 21 Service Company Contract, hereunder and if Purchaser is not in default of any of Purchaser’s material obligations under this Agreement or under the Block 21 Service Company Contractdefault, then, subject after five (5) days’ written notice with right to Sections 6.01(f) and (g) (and any corresponding provisions of the Block 21 Service Company Contract)cure, Purchaser may, as Purchaser’s sole and exclusive remedy, eithershall have the right to: (i) terminate this Agreement by giving Seller written notice and be entitled to a return of such election prior to or at Closing in which event this Agreement shall terminate, the Xxxxxxx Money shall be returned to PurchaserEscrow Deposit; or (ii) enforce to seek specific performance of Seller’s obligations under this Agreement if and only if Purchaser complies with all of the preconditions and requirements set out in Section 8.02(c) hereinbelow. If Seller delivers to Purchaser, at or prior to the Closing, a written notice of any breach of representation, warranty or covenant by Seller which involves matters outside of Seller’s control and Purchaser elects to proceed with the Closing, then the Closing will occur without any reduction in the Purchase Price and Purchaser shall be deemed to have waived any claims Purchaser might otherwise have had against Seller with respect to any matters which are disclosed in Seller’s written notice. In addition to the foregoing Purchaser may recover from Seller all costs and expenses, including reasonable attorney’s fees, incurred in connection with Purchaser’s enforcement of Seller’s obligations under this Agreement or the recovery of the Xxxxxxx Money deposited by Purchaser under this Agreement. (b) If this Agreement is terminated and Purchaser has a right to receive the Xxxxxxx Money, then Seller shall execute any and all documents required by the Title Company in order to release the Xxxxxxx Money to Purchaser. (c) Notwithstanding any provision in this Agreement to the contrary, it is specifically agreed and understood that, for Purchaser to enforce specific performance of Seller’s obligations under this Agreement or to place a lis pendens on the Property or otherwise encumber the Property Purchaser must (i) timely tender substantial performance under this Agreement, except to the extent provided such specific performance action is frustrated by any action or failure to act by brought within sixty (x) Seller, (y) any other Seller Party, or, (z) if resulting from or related to the Seller default giving rise to Purchaser’s effort to enforce specific performance, the Title Company, Starwood, Xxxxxxx or the loan servicer, and following such tender of substantial performance by Purchaser, Seller fails or refuses to close the transaction evidenced by this Agreement; and (ii) Purchaser institutes, within thirty (3060) days after the Closing Deadlinedate Seller defaults under the terms of this Agreement, as its sole and exclusive remedies. Notwithstanding the foregoing, if Purchaser selects option (ii) above and specific performance is not an action in a court with jurisdiction and in the venue specified under available remedy to Purchaser because Seller breached this Agreement by selling the Property to a party other than Purchaser (or an affiliate of Purchaser) while this Agreement remained in full force and effect, then, Purchaser shall have the “Court”right to file suit against Seller for actual damages (but not consequential, incidental, indirect, special, exemplary, punitive damages, or any other type of damages) resulting from such default, provided Purchaser files such suit within sixty (60) days following such breach and the amount of actual damages claimed is not more than ten percent (10%) of the Purchase Price allocated to the applicable Parcel(s). Notwithstanding the foregoing, seeking to enforce specific performance of however, Seller and Purchaser acknowledge and agree that the limitation on Seller’s obligations under this Agreement. If Purchaser satisfies the foregoing requirements, then all sums held by the Title Company or Purchaser’s remedies set forth above shall be tendered to the Court and will be retained by the Court until all disputes between the Parties related to this Agreement have been resolved, either by final non-appealable judgment not limit Seller’s or by final binding settlement agreement between the Parties. Each Party agrees to execute and deliver such joint instructions, joint motions and other instruments as may be necessary to effectuate the transfer of the funds from the Title Company to the Court contemplated under this Section 8.02(c). PURCHASER HERBY WAIVES ALL RIGHTS WHICH PURCHASER HAS OR MAY HAVE TO ENFORCE SPECIFIC PERFORMANCE OF SELLER’S OBLIGATIONS UNDER THIS AGREEMENT AND/OR TO PLACE A LIS PENDENS ON THE PROPERTY WITHOUT SATISFYING THE REQUIREMENTS AND CONDITIONS SET OUT IN THIS SECTION 8.02(c). (d) For purposes of this Agreement and the Block 21 Service Company Contract, the term “Covered Matters” means and refers to any breach of an express representation, warranty or covenant by Seller or Xxxxxxx Xxxxx 00 Xxxxxxxxxxx under this Agreement or the Block 21 Service Company Contract or under any of the closing documents of either this Agreement or the Block 21 Service Company Contract which breach: (1) is in existence on the Closing Date; and (2) is not within the actual knowledge of Purchaser or disclosed by the Property Information. Notwithstanding any provision in this Agreement to the contrary, Purchaser’s rights to recover damages from Seller bring an action to enforce any indemnification provisions set forth herein or, following Closing, to pursue all rights and Xxxxxxx Xxxxx 00 Investments remedies with respect to Seller’s breach of a representation and warranty or a violation of a covenant(s) which survives the Closing Date, and nothing herein shall be deemed a limitation on Seller’s or Purchaser’s rights to be reimbursed for a Covered Matter are subject to the following limitations, agreements and requirements:its attorneys’ fees as provided in Section 15(m) hereof.