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

Seller's Default; Purchaser's Remedies. If Seller is in material default hereunder and fails to cure such default within three (3) business days after Purchaser delivers written notice of such default to Seller (herein referred to as a “Seller default”), and if such Seller default occurs on or before Closing and Purchaser has notice thereof on or before Closing, then Purchaser shall have the option, as its sole recourse, to either (i) bring an action, within thirty (30) days following such Seller default, for the specific performance of this Agreement (ii) terminate this Agreement, whereupon Purchaser shall receive a return of the Deposit, together with net interest thereon, and this Agreement shall thereafter be deemed null and void and neither party shall have any further rights or obligations hereunder (subject, however, to survival of Purchaser’s Indemnity and Purchaser’s Confidentiality Obligations), or (iii) xxx for and receive damages, not to exceed $250,000.00. Purchaser agrees that it will deliver written notice of a Seller default to Seller within a reasonable time after Purchaser obtains actual knowledge of such Seller default. Nothing herein shall be deemed to imply that Seller’s warranty and indemnification obligations under Section 12 or Seller’s indemnification obligations described in Section 14.2(b) above shall be subject to any of the limitations on remedies contained in this Section 15.1.

Seller's Default; Purchaser's Remedies. If Seller is In the event of Seller's default in material default hereunder and fails the performance of any obligation or covenant under this Agreement which causes the Closing not to cure such default within three (3) business days after Purchaser delivers written notice of such default to Seller (herein referred to as a “Seller default”)take place in accordance with this Agreement, and if such Seller default occurs on or before Closing and Purchaser has notice thereof on or before ClosingPurchaser, then Purchaser shall have the optionat its election, as its sole recourse, to either may: (i) bring an action, within thirty (30) days following such Seller default, for avail itself of the equitable remedy of specific performance (to the extent reasonably capable of performance); or (ii) in addition to, but not to the exclusion of. Purchaser's rights and remedies under subsection 16(b)(iv) hereinbelow, terminate this Agreement (except for indemnity obligations under the Right-of-Entry Agreement and Section 28 of this Agreement (ii) terminate and confidentiality obligations under Section 29 of this Agreement, whereupon Purchaser shall receive a return of the Deposit, together with net interest thereon, and this Agreement shall thereafter be deemed null and void and neither party shall have any further rights or obligations hereunder (subject, however, ) by written notice to survival of Purchaser’s Indemnity and Purchaser’s Confidentiality Obligations), Seller; or (iii) xxx for waive the default and receive damagesproceed with the purchase of the Property in accordance with this Agreement; or (iv) avail itself of any other remedy available to it at law or in equity (provided, not to exceed $250,000.00. Purchaser agrees however, that it will deliver written notice the liability of a Seller default to Seller within a reasonable time after Purchaser obtains actual knowledge of such Seller default. Nothing herein shall be deemed to imply that Seller’s warranty and indemnification obligations under Section 12 or Seller’s indemnification obligations described in Section 14.2(b) above shall be subject to any of the limitations on Amfac-Related Entities for damages shall not exceed Purchaser's Actual Damages (as hereinafter defined), it being understood and agreed that Purchaser shall not be entitled to recover (A) consequential damages of any kind, including but not limited to bst profits and/or lost business opportunities, (B) special damages, or (C) punitive damages and/or exemplary damages, or (D) any other damages in excess of Purchaser's Actual Damages, however defined, alleged, plead or denominated). In the event of Seller's default in the performance of any obligation or covenant of Seller under this Agreement which does not prevent the Closing from occurring, or of any other obligation or covenant of Seller under this Agreement after the Closing Date, Purchaser may avail itself of any and all remedies available to it at law or in equity (provided, however, that the liability of Seller and any of the Amfac-Related Entities for damages and/or penalties shall not exceed, in the aggregate, the amount of the Purchase Price). Notwithstanding anything to the contrary contained in this Section 15.1.Agreement or elsewhere, no parent, owner, affiliate, stockholder, member, director, officer, or board member of Seller or any of the Amfac-Related Entities shall have any personal liability pursuant to

Seller's Default; Purchaser's Remedies. If Seller is in material default hereunder hereunder, including without limitation as a result of an intentional and material breach as of the Effective Date of any material representation and warranty made herein by Seller (herein referred to as a "Seller Default") and fails to cure such default within three ten (310) business days after Purchaser delivers written notice of such default to Seller (herein referred which cure period shall be extended for a period not exceeding an additional ten (10) business days for any default other than (a) a default in failing to close on the Closing Date as a “required hereunder, or (b) any other intentional or willful default of Seller, provided that such extended cure period shall only apply so long as Seller default”is diligently pursuing the cure of such default during said ten (10) business day period), and if such Seller default Default occurs on or before prior to Closing and Purchaser has notice or is otherwise aware thereof on or before prior to Closing, then Purchaser shall have the optionright, as its sole recourseand exclusive remedy, to either (i) bring an action, within thirty (30) days following such Seller default, for the specific performance of this Agreement (ii) terminate this Agreement, whereupon Purchaser shall receive a return of the Deposit, together with all net interest earned thereon, and this Agreement shall thereafter be deemed null and void and neither party shall have any further rights or obligations hereunder (subject, however, to survival of Purchaser’s 's Indemnity and Purchaser’s 's Confidentiality Obligations), or and provided that if Purchaser elects to terminate the Agreement, Purchaser shall remain entitled to receive liquidated damages in the amount of $1,000,000 (iii) xxx for and receive damages, not it being agreed that the damages to exceed $250,000.00. be sustained by Purchaser agrees that it will deliver written notice as a result of a Seller default Default are extremely difficult and impractical to Seller within ascertain, and that such amount is a reasonable time estimate of such damages and is not a penalty), except if within six (6) months after Purchaser obtains actual knowledge notifies Seller that a Seller Default exists, Seller sells the Property in its entirety to an unaffiliated third party, and a court of competent jurisdiction adjudicates that a Seller Default did in fact occur under this Agreement, Purchaser shall also be entitled to receive any net proceeds realized by Seller from such sale in excess of the net proceeds which would have been realized by Seller if the sale contemplated by this Agreement had been consummated. In no event shall Purchaser be entitled to seek the remedy of specific performance or record a lis pendens or notice of pendency of action against all or any portion of the Property for any reason whatsoever and Purchaser expressly waives and relinquishes any such rights. If a Seller Default first occurs after Closing or Purchaser first receives notice or otherwise becomes aware thereof after Closing, then Purchaser's sole recourse shall be to xxx Seller for all provable damages of Purchaser caused by the Seller Default, excluding consequential, speculative and punitive damages, and provided further that the total amount of such damages to be collected by Purchaser as a result of a Seller defaultDefault shall not exceed $1,000,000. Nothing herein shall be deemed to imply that Notwithstanding the foregoing, Seller’s warranty and indemnification 's re-proration obligations under Section 12 or 6.2 above, Seller’s 's pre-Closing indemnification obligations described contained in the Assignment and Assumption Agreements for the Ground Lease, Contracts, Licenses and Leases, and the losing party's obligation to pay legal fees and costs in accordance with Section 14.2(b) above 17.10 shall not be subject to any of the limitations on remedies contained described in this Section 15.1. Any claim by Purchaser against Seller based upon a Seller Default occurring prior to Closing or as to which Purchaser receives notice or otherwise becomes aware prior to Closing shall be deemed waived unless Purchaser (i) delivers to Seller notice of such claim within three (3) months after the date on which the Closing would have otherwise occurred, and (ii) files suit within two (2) months after delivery to Seller of any notice of claim. Any claim by Purchaser against Seller based upon a Seller Default occurring after Closing or as to which Purchaser first receives notice or otherwise becomes aware after Closing shall be deemed waived unless Purchaser (i) delivers to Seller written notice of such claim prior to the date which is six (6) months after the Closing Date, and (ii) files suit within two (2) months after delivery to Seller of any such notice of claim.

Seller's Default; Purchaser's Remedies. If If, prior to Closing, Seller is in material default hereunder breaches this Agreement and fails to cure such default within three continues for ten (310) business days after Purchaser delivers written notice of such default from Purchaser to Seller thereof (herein referred except such notice and cure period shall not apply to as a “Seller default”), and if such Seller default occurs on or before Closing and Purchaser has notice thereof on or before Closing, failure to close) then Purchaser shall have the optionshall, as its sole recourseremedy, have the right to either (i) bring an action, within thirty (30) days following such Seller default, for the specific performance of terminate this Agreement (ii) terminate this Agreementby written notice thereof to Seller, whereupon in which event Purchaser shall (A) receive a return refund of the Deposit, together with net interest thereon(B) upon Seller’s direction, return or destroy the Property Information, and this Agreement shall thereafter be deemed null and void and (C) neither party shall have any further rights or obligations hereunder (subject, however, to survival of Purchaser’s Indemnity and Purchaser’s Confidentiality Obligations)liability under this Agreement except for liability which expressly survives termination as provided herein, or (iiiii) xxx seek specific performance of Seller’s obligations hereunder and to recover its attorneys’ fees and costs as set forth in paragraph C hereof, except that in the event the remedy of specific performance is not available to Purchaser due to Seller’s fraud, Purchaser shall, in addition to the foregoing remedies, be permitted to pursue any and all rights and remedies available to Purchaser at law or in equity on account of Seller’s breach. Except with respect to a breach of any of Seller’s representations or warranties under Section 11 or in the Deed or other documents delivered by Seller at Closing, or any Surviving Purchaser Claims, Purchaser hereby unconditionally and irrevocably waives, to the greatest extent permitted by law, any claim for and receive damages, not to exceed $250,000.00. Purchaser agrees that it will deliver written notice monetary damages against Seller arising out of a default by Seller default hereunder, which waiver will survive the termination of this Agreement. Notwithstanding anything to Seller the contrary contained herein, in the event Purchaser has not commenced an action for specific performance pursuant to the foregoing subclause (ii) within a reasonable time sixty (60) days after the date of Seller’s default, Purchaser obtains actual knowledge of such Seller default. Nothing herein shall be deemed to imply that Seller’s warranty have waived its right to pursue and indemnification obligations under Section 12 or Seller’s indemnification obligations described in Section 14.2(b) above shall be subject obtain specific performance pursuant to any of the limitations on remedies contained in this Section 15.1such foregoing subclause (ii).