Common use of Seller's Default; Buyer's Remedies Clause in Contracts

Seller's Default; Buyer's Remedies. In the event of Seller’s default in the performance of any obligation or covenant under this Agreement prior to Closing which prevents Closing from taking place as provided herein, Buyer shall elect, in Buyer's sole discretion, to either: (i) terminate this Agreement and, except as otherwise provided in Section 8(b) hereof, receive the Deposits to the extent made (plus accrued interest thereon), in which event Seller shall pay all Escrow Cancellation Charges and upon such termination neither Party shall have any further rights or obligations hereunder, other than pursuant to any provision hereof which expressly survives the termination of this Agreement and/or any indemnity created or granted herein, (ii) seek specific performance of Seller's obligations hereunder; provided however, that as a condition precedent to Buyer exercising any right it may have to bring an action for specific performance, Buyer must commence such action within ninety calendar days after the scheduled date of Closing, or (iii) waive the default and proceed with the purchase of the Property in accordance with this Agreement. Buyer acknowledges and agrees that the limitation of Buyer's remedies is a material condition of Seller's willingness to enter into this Agreement, and Buyer specifically confirms and acknowledges that in consideration of Seller's acceptance of this Agreement, Buyer has accepted all other risks of Seller's default, and agrees that Buyer's remedies, as expressly limited in this Agreement, represent adequate and sufficient compensation to Buyer in the event of Seller's default. Except as otherwise provided in this Agreement, in no event shall Buyer have the right to seek damages from Seller by reason of a default hereunder and Buyer hereby expressly waives any such right. 3102/001/106725

Seller's Default; Buyer's Remedies. In the event of Seller’s default in the performance of any obligation or covenant under this Agreement prior to Closing which prevents Closing from taking place as provided herein, Buyer shall elect, in Buyer's sole discretion, to either: (i) terminate this Agreement and, except as otherwise provided in Section 8(b) hereof, receive the Deposits to the extent made (plus accrued interest thereon), in which event Seller shall pay all Escrow Cancellation Charges and reimburse Buyer for all reasonable and documented out-of-pocket third party costs actually incurred by Buyer in negotiation of this Agreement and due diligence investigation of the Property, and upon such termination neither Party shall have any further rights or obligations hereunder, other than pursuant to any provision hereof which expressly survives the termination of this Agreement and/or any indemnity created or granted herein, (ii) seek specific performance of Seller's obligations hereunder; provided however, that as a condition precedent to Buyer exercising any right it may have to bring an action for specific performance, Buyer must commence such action within ninety calendar days after the scheduled date of Closing, or (iii) waive the default and proceed with the purchase of the Property in accordance with this Agreement. Buyer acknowledges and agrees that the limitation of Buyer's remedies is a material condition of Seller's willingness to enter into this Agreement, and Buyer specifically confirms and acknowledges that in consideration of Seller's acceptance of this Agreement, Buyer has accepted all other risks of Seller's default, and agrees that Buyer's remedies, as expressly limited in this Agreement, represent adequate and sufficient compensation to Buyer in the event of Seller's default. Except as otherwise provided If after Closing, Seller fails to perform any of its obligations which survive Closing, Buyer may exercise any remedy available to it at law or in equity, subject to the limitations set forth in this Agreement, in no event shall Buyer have the right to seek damages from Seller by reason of a default hereunder and Buyer hereby expressly waives any such right. 3102/001/106725.

Seller's Default; Buyer's Remedies. In the event of Seller’s 's material default in the performance of any obligation or covenant under this Agreement prior to Closing which prevents Closing from taking place as provided herein, Buyer shall elect, in Buyer's sole discretion, to eitherto: (i) terminate this Agreement and, except as otherwise provided in Section 8(b) hereof, receive the Deposits to the extent made (plus accrued interest thereon), in which event Seller shall (x) pay all Escrow Cancellation Charges and upon (y) promptly pay, directly or by reimbursement, all Buyer’s out-of-pocket transaction costs that are reasonable and customary, and actually incurred to third parties, and evidenced by written invoices or similar documentation; provided, however, Seller's obligation 3102/001/109971.10 31 to pay such termination out-of-pocket transaction costs shall not exceed in the aggregate, the sum of FIFTY THOUSAND AND NO/100 U.S. DOLLARS (U.S. $50,000.00), and thereafter, neither Party shall have any further rights or obligations hereunder, other than pursuant to any provision hereof which expressly survives the termination of this Agreement and/or any indemnity created or granted herein, (ii) seek specific performance of Seller's obligations hereunder; provided however, that as a condition precedent to Buyer exercising any right it may have to bring an action for specific performance, Buyer must commence such action within ninety calendar days after the scheduled date of Closing, or (iii) waive the default and proceed with the purchase of the Property in accordance with this Agreement. Buyer acknowledges and agrees that the limitation of Buyer's remedies is a material condition of Seller's willingness to enter into this Agreement, and Buyer specifically confirms and acknowledges that in consideration of Seller's acceptance of this Agreement, Buyer has accepted all other risks of Seller's default, and agrees that Buyer's remedies, as expressly limited in this Agreement, represent adequate and sufficient compensation to Buyer in the event of Seller's default. Except as otherwise provided in this Agreement, in no event shall Buyer have the right to seek damages from Seller by reason of a default hereunder and Buyer hereby expressly waives any such right. 3102/001/106725.

Seller's Default; Buyer's Remedies. In the event of Seller’s material default in the performance of any obligation or covenant under this Agreement prior to Closing which prevents Closing from taking place as provided hereinClosing, Buyer shall elect, in Buyer's ’s sole discretion, to either: (i) terminate this Agreement and, except as otherwise provided in Section 8(b) hereof, and receive the Deposits to the extent made (plus accrued interest thereon), in which event Seller shall pay all Escrow Cancellation Charges and Seller shall reimburse Buyer for Buyer’s documented and reasonable out-of-pocket costs incurred in connection with its due diligence which shall not in any event exceed in the aggregate the sum of FIFTY THOUSAND AND NO/100 U.S. DOLLARS (U.S. $50,000.00) and upon such termination neither Party shall have any further rights or obligations hereunder, other than pursuant to any provision hereof which expressly survives the termination of this Agreement and/or any indemnity created or granted hereinherein and for recovery of Buyer’s reasonable costs and expenses for enforcing this Agreement including reasonable attorneys’ fees, or (ii) proceed with Closing, and if necessary seek specific performance of Seller's ’s obligations hereunder, and exercise any rights or remedies it may have at law or in equity by virtue of any provision of this Agreement which expressly survives the termination of this Agreement and/or any indemnity created or granted herein subject to the terms and provisions of this Agreement, and recover the costs and expenses of enforcing this Agreement, including reasonable attorneys’ fees; provided provided, however, that as a condition precedent to Buyer exercising any right it may have to bring an action for seek specific performance, Buyer must commence such action within ninety (90) calendar days of after the scheduled date of Closing, or (iii) waive the default and proceed with the purchase of the Property in accordance with this AgreementScheduled Closing Date. Buyer acknowledges and agrees that the limitation of Buyer's ’s remedies is a material condition of Seller's ’s willingness to enter into this Agreement, and Buyer specifically confirms and acknowledges that in consideration of Seller's ’s acceptance of this Agreement, Buyer has accepted all other risks of Seller's ’s default, and agrees that Buyer's ’s remedies, as expressly limited in this Agreement, represent adequate and sufficient compensation to Buyer in the event of Seller's ’s default. Except as otherwise provided in this Agreement, in no event shall Buyer have the right to seek damages from Seller by reason of a default hereunder and Buyer hereby expressly waives any such right. 3102/001/106725.

Seller's Default; Buyer's Remedies. If, after written demand, Seller fails to consummate this Agreement in accordance with its terms or the terms of the Asset Purchase Agreement (other than by reason of (i) Buyer’s breach of any of its representations or warranties contained in this Agreement; (ii) Buyer’s continuing default of any of its covenants hereunder after ten (10) days prior written notice of such default; (iii) a failure of any condition to Seller’s obligation to sell the Property to be satisfied; (iv) a termination of this Agreement by Seller or Buyer pursuant to a right to do so expressly provided for in this Agreement, except by reason of a default by Seller; or (v) failure by Buyer to deliver the items required under Section 8.2(b)), Buyer may terminate this Agreement by written notice to Seller and Buyer may recover from Seller, all of Buyer’s damages, including attorneys’ fees and costs. Notwithstanding the foregoing, if Seller fails to consummate this Agreement in accordance with its terms as provided in the preceding paragraph, Buyer may elect, in lieu of terminating this Agreement and recovering damages from Seller, to seek the specific performance of this Agreement. In the event of Seller’s default after Closing in the performance any of any obligation or covenant under its covenants in this Agreement prior to which survive Closing which prevents Closing or under any documents delivered at Closing, and such default continues for more than thirty (30) days after written notice of such default from taking place as provided hereinBuyer, Buyer shall electbe entitled to pursue any remedies available at law or in equity including, in Buyer's sole discretionbut not limited to, a suit for damages from Seller or a suit to either: (i) terminate this Agreement and, except as otherwise provided in Section 8(b) hereof, receive the Deposits to the extent made (plus accrued interest thereon), in which event Seller shall pay all Escrow Cancellation Charges and upon such termination neither Party shall have any further rights or obligations hereunder, other than pursuant to any provision hereof which expressly survives the termination enforce specific performance of this Agreement and/or any indemnity created or granted herein, against Seller (ii) seek specific performance of Seller's obligations hereunder; provided however, that as a condition precedent to Buyer exercising any right it may have to bring an action for specific performance, Buyer must commence such action within ninety calendar days after the scheduled date of Closing, or (iii) waive the default including attorneys’ fees and proceed with the purchase of the Property in accordance with this Agreement. Buyer acknowledges and agrees that the limitation of Buyer's remedies is a material condition of Seller's willingness to enter into this Agreement, and Buyer specifically confirms and acknowledges that in consideration of Seller's acceptance of this Agreement, Buyer has accepted all other risks of Seller's default, and agrees that Buyer's remedies, as expressly limited in this Agreement, represent adequate and sufficient compensation to costs incurred by Buyer in the event of Seller's default. Except as otherwise provided in this Agreement, in no event shall Buyer have the right to seek damages from Seller by reason of a default hereunder and Buyer hereby expressly waives connection with any such right. 3102/001/106725suit).