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

Seller's Default; Purchaser's Remedies. If Seller fails to sell the Property to Purchaser in accordance with this Agreement, or breaches any of its duties, obligations, representations or warranties contained in this Agreement in any material respect, or fails or is unable to deliver any of the documents required to be delivered by Seller hereunder, and provided that such failure or breach is not cured within five (5) Business Days of the date on which Purchaser notifies Seller of such failure or breach, Purchaser, at its election and as its sole and exclusive legal and equitable remedies, shall be entitled to (i) terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and Purchaser’s Out of Pocket Expenses, (ii) waive the Seller’s default and proceed to close on the terms and conditions set forth in this Agreement without any adjustment to the Purchase Price except as provided in Section 4.4, or (iii) xxx for specific performance of Seller’s obligations hereunder. Purchaser waives any right to pursue any other remedy at law or equity for such default of Seller prior to Closing. Purchaser waives any right to seek, claim or obtain damages, punitive damages or consequential damages, and in no case shall Seller ever be liable to Purchaser under any statutory, common law, equitable or other theory of law, either prior to or following the Closing, for any lost rents, profits, “benefit of the bargain,” business opportunities or any form of consequential damage in connection with any claim, liability, demand or cause of action in any way or manner relating to the Property, the condition of the Property, this Agreement, or any transaction or matter between the parties contemplated hereunder.

Seller's Default; Purchaser's Remedies. (a) Seller shall be deemed to be in default hereunder upon the occurrence of one of the following events: (i) any of Seller's warranties or representations set forth herein shall be untrue in any material respect when made or at Closing; or (ii) Seller shall fail to meet, comply with, or perform any covenant, agreement or obligation on its part required within the time limits and in the manner required in this Agreement, which, in either of such events, is not cured by Seller within ten (10) days following receipt by Seller of written notice of default from Purchaser. (b) In the event Seller shall be deemed to be in default hereunder Purchaser may, at Purchaser's sole option, do any one or more of the following: (i) terminate this Agreement by written notice delivered to Seller on or before the Closing; and/or (ii) enforce specific performance of this Agreement against Seller including Purchaser's reasonable costs and attorneys fees in connection therewith; and/or (iii) exercise any other right or remedy Purchaser may have at law or in equity by reason of such default including, but not limited to, the recovery of reasonable attorneys' fees incurred by Purchaser in connection herewith. (c) Upon the occurrence of any event deemed to be a default by Seller hereunder, all payments previously made by Purchaser to Seller or the Title Company hereunder shall be forthwith returned to Purchaser by the Title Company on receipt of written notice from Purchaser that Seller has defaulted under this Agreement, which written notice need not be accompanied by any other document or consent of any other party hereto. If Seller fails such sums are to sell the Property be returned to Purchaser in accordance with this AgreementSection 10.1(c), or breaches any of its dutiesSeller shall promptly, obligationson written request from Purchaser, representations or warranties contained in this Agreement in any material respect, or fails or is unable to execute and deliver any of the such documents as may be required to be delivered by Seller hereunder, and provided that cause the Title Company to return such failure or breach is not cured within five (5) Business Days of the date on which Purchaser notifies Seller of such failure or breach, sums to Purchaser, at its election and as its sole and exclusive legal and equitable remedies, shall be entitled to (i) terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and Purchaser’s Out of Pocket Expenses, (ii) waive the Seller’s default and proceed to close on the terms and conditions set forth in this Agreement without any adjustment to the Purchase Price except as provided in Section 4.4, or (iii) xxx for specific performance of Seller’s obligations hereunder. Purchaser waives any right to pursue any other remedy at law or equity for such default of Seller prior to Closing. Purchaser waives any right to seek, claim or obtain damages, punitive damages or consequential damages, and in no case shall Seller ever be liable to Purchaser under any statutory, common law, equitable or other theory of law, either prior to or following the Closing, for any lost rents, profits, “benefit of the bargain,” business opportunities or any form of consequential damage in connection with any claim, liability, demand or cause of action in any way or manner relating to the Property, the condition of the Property, this Agreement, or any transaction or matter between the parties contemplated hereunder.

Seller's Default; Purchaser's Remedies. If Seller is in material default 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 sell cure such default within ten (10) business days after Purchaser delivers written notice of such default to Seller (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 Property to Purchaser in accordance with this AgreementClosing Date as required hereunder, or breaches (b) any other intentional or willful default of its dutiesSeller, obligations, representations or warranties contained in this Agreement in any material respect, or fails or is unable to deliver any of the documents required to be delivered by Seller hereunder, and provided that such failure or breach extended cure period shall only apply so long as Seller is not cured within five (5) Business Days of diligently pursuing the date on which Purchaser notifies Seller cure of such failure default during said ten (10) business day period), and such Seller Default occurs on or breachprior to Closing and Purchaser has notice or is otherwise aware thereof on or prior to Closing, Purchaserthen Purchaser shall have the right, at its election and as its sole and exclusive legal remedy, to terminate this Agreement, whereupon Purchaser shall receive a return of the Deposit, together with all net interest earned thereon, this Agreement shall be null and equitable remediesvoid and neither party shall have any further rights or obligations hereunder (subject, however, to survival of Purchaser's Indemnity and Purchaser's Confidentiality Obligations), 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 (it being agreed that the damages to be sustained by Purchaser as a result of a Seller Default are extremely difficult and impractical to ascertain, and that such amount is a reasonable estimate of such damages and is not a penalty), except if within six (6) months after Purchaser 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 Default shall not exceed $1,000,000. Notwithstanding the foregoing, Seller's re-proration obligations under Section 6.2 above, Seller's pre-Closing indemnification obligations 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 17.10 shall not be subject to any of the limitations 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) terminate this Agreement delivers to Seller notice of such claim within three (3) months after the date on which the Closing would have otherwise occurred, and receive a refund of the Xxxxxxx Money Deposit and Purchaser’s Out of Pocket Expenses, (ii) waive the Seller’s default and proceed files suit within two (2) months after delivery to close on the terms and conditions set forth in this Agreement without Seller of any adjustment 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 Purchase Price except as provided in Section 4.4, or date which is six (iii6) xxx for specific performance of Seller’s obligations hereunder. Purchaser waives any right to pursue any other remedy at law or equity for such default of Seller prior to Closing. Purchaser waives any right to seek, claim or obtain damages, punitive damages or consequential damagesmonths after the Closing Date, and in no case shall (ii) files suit within two (2) months after delivery to Seller ever be liable to Purchaser under of any statutory, common law, equitable or other theory such notice of law, either prior to or following the Closing, for any lost rents, profits, “benefit of the bargain,” business opportunities or any form of consequential damage in connection with any claim, liability, demand or cause of action in any way or manner relating to the Property, the condition of the Property, this Agreement, or any transaction or matter between the parties contemplated hereunder.

Seller's Default; Purchaser's Remedies. If If, prior to Closing, Seller fails to sell the Property to Purchaser in accordance with this Agreement, or breaches any of its duties, obligations, representations or warranties contained in this Agreement in any material respectand such default continues for ten (10) days after written notice from Purchaser to Seller thereof (except such notice and cure period shall not apply to a failure to close) then Purchaser shall, or fails or is unable to deliver any of the documents required to be delivered by Seller hereunder, and provided that such failure or breach is not cured within five (5) Business Days of the date on which Purchaser notifies Seller of such failure or breach, Purchaser, at its election and as its sole and exclusive legal and equitable remediesremedy, shall be entitled have the right to either (i) terminate this Agreement and by written notice thereof to Seller, in which event Purchaser shall (A) receive a refund of the Xxxxxxx Money Deposit Deposit, (B) upon Seller’s direction, return or destroy the Property Information, and Purchaser’s Out of Pocket Expenses(C) neither party shall have any further liability under this Agreement except for liability which expressly survives termination as provided herein, or (ii) waive the Seller’s default and proceed to close on the terms and conditions set forth in this Agreement without any adjustment to the Purchase Price except as provided in Section 4.4, or (iii) xxx for 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 monetary damages against Seller arising out of a default by Seller hereunder, which waiver will survive the termination of this Agreement. Notwithstanding anything to the contrary contained herein, in the event Purchaser waives any has not commenced an action for specific performance pursuant to the foregoing subclause (ii) within sixty (60) days after the date of Seller’s default, Purchaser shall be deemed to have waived its right to pursue any other remedy at law or equity for and obtain specific performance pursuant to such default of Seller prior to Closing. Purchaser waives any right to seek, claim or obtain damages, punitive damages or consequential damages, and in no case shall Seller ever be liable to Purchaser under any statutory, common law, equitable or other theory of law, either prior to or following the Closing, for any lost rents, profits, “benefit of the bargain,” business opportunities or any form of consequential damage in connection with any claim, liability, demand or cause of action in any way or manner relating to the Property, the condition of the Property, this Agreement, or any transaction or matter between the parties contemplated hereunderforegoing subclause (ii).

Seller's Default; Purchaser's Remedies. If Seller fails In the event of Seller's default in the performance of any obligation or covenant under this Agreement which causes the Closing not to sell the Property to Purchaser take place in accordance with this Agreement, Purchaser, at its election, may: (i) avail itself of the equitable remedy of specific performance (to the extent reasonably capable of performance); or breaches (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 and confidentiality obligations under Section 29 of this Agreement) by written notice to Seller; or (iii) waive the default and proceed 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, however, that the liability of Seller and any of its dutiesthe Amfac-Related Entities for damages shall not exceed Purchaser's Actual Damages (as hereinafter defined), obligationsit being understood and agreed that Purchaser shall not be entitled to recover (A) consequential damages of any kind, representations including but not limited to bst profits and/or lost business opportunities, (B) special damages, or warranties (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 Agreement in any material respector elsewhere, no parent, owner, affiliate, stockholder, member, director, officer, or fails board member of Seller or is unable to deliver any of the documents required to be delivered by Seller hereunder, and provided that such failure or breach is not cured within five (5) Business Days of the date on which Purchaser notifies Seller of such failure or breach, Purchaser, at its election and as its sole and exclusive legal and equitable remedies, Amfac-Related Entities shall be entitled to (i) terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and Purchaser’s Out of Pocket Expenses, (ii) waive the Seller’s default and proceed to close on the terms and conditions set forth in this Agreement without have any adjustment to the Purchase Price except as provided in Section 4.4, or (iii) xxx for specific performance of Seller’s obligations hereunder. Purchaser waives any right to pursue any other remedy at law or equity for such default of Seller prior to Closing. Purchaser waives any right to seek, claim or obtain damages, punitive damages or consequential damages, and in no case shall Seller ever be liable to Purchaser under any statutory, common law, equitable or other theory of law, either prior to or following the Closing, for any lost rents, profits, “benefit of the bargain,” business opportunities or any form of consequential damage in connection with any claim, liability, demand or cause of action in any way or manner relating to the Property, the condition of the Property, this Agreement, or any transaction or matter between the parties contemplated hereunder.personal liability pursuant to

Seller's Default; Purchaser's Remedies. If Seller is in material default hereunder and fails to sell 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 Property option, as its sole recourse, to Purchaser in accordance with either (i) bring an action, within thirty (30) days following such Seller default, for the specific performance of this Agreement (ii) terminate this Agreement, or breaches any whereupon Purchaser shall receive a return of its dutiesthe Deposit, obligationstogether with net interest thereon, representations or warranties contained in and this Agreement in shall thereafter be deemed null and void and neither party shall have any material respectfurther rights or obligations hereunder (subject, or fails or is unable however, to deliver any survival of the documents required to be delivered by Seller hereunder, and provided that such failure or breach is not cured within five (5) Business Days of the date on which Purchaser notifies Seller of such failure or breach, Purchaser, at its election and as its sole and exclusive legal and equitable remedies, shall be entitled to (i) terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit ’s Indemnity and Purchaser’s Out of Pocket Expenses, (ii) waive the Seller’s default and proceed to close on the terms and conditions set forth in this Agreement without any adjustment to the Purchase Price except as provided in Section 4.4Confidentiality Obligations), or (iii) xxx for specific performance 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 hereunder. Purchaser waives under Section 12 or Seller’s indemnification obligations described in Section 14.2(b) above shall be subject to any right to pursue any other remedy at law or equity for such default of Seller prior to Closing. Purchaser waives any right to seek, claim or obtain damages, punitive damages or consequential damages, and in no case shall Seller ever be liable to Purchaser under any statutory, common law, equitable or other theory of law, either prior to or following the Closing, for any lost rents, profits, “benefit of the bargain,” business opportunities or any form of consequential damage limitations on remedies contained in connection with any claim, liability, demand or cause of action in any way or manner relating to the Property, the condition of the Property, this Agreement, or any transaction or matter between the parties contemplated hereunderSection 15.1.