Common use of Seller’s Defaults Clause in Contracts

Seller’s Defaults. In respect to the remedies afforded Purchaser pursuant to Paragraph 18.04 hereof, Seller shall be deemed to be in default under this Agreement in the event (i) Seller fails, for any reason (other than a default by Purchaser), to perform any of its material obligations under this Agreement that arise on or prior to the Phase I Closing within the time limits and in the manner provided for in this Agreement, (ii) any representation or warranty by Seller in this Agreement is untrue or inaccurate in a material respect when made or as of the Phase I Closing Date, (iii) any Other Seller under the applicable Other Sale Agreement fails, for any reason (other than a default by Purchaser), to perform any of its material obligations under the subject Other Sale Agreement that arise on or prior to the Phase I Closing within the time limits and in the manner provided for in such Other Sale Agreement, or (iv) any representation or warranty made by any Other Seller in the applicable Other Sale Agreement is untrue or inaccurate in a material respect when made or as of the Phase I Closing Date. Notwithstanding the provisions of clauses (iii) and (iv) above, if Purchaser closes this transaction, any default or any inaccurate representation or warranty by any Other Seller under the terms of the applicable Other Sale Agreement shall be deemed waived in respect to this Agreement and it shall not be construed as a default by Seller hereunder. In respect to the remedies afforded Purchaser pursuant to Paragraph 18.05 hereof, Seller shall be deemed to be in default under this Agreement in the event Seller fails, for any reason (other than a default by Purchaser), to perform any of its material obligations under this Agreement that arise subsequent to the Phase I Closing (excluding the obligations of Seller to close this transaction in respect to subsequent Phase Closing, in which event the remedies afforded Purchaser pursuant to Paragraph 18.04 shall only apply) within the time limits and in the manner provided for in this Agreement or any representation or warranty made by Seller in this Agreement is untrue or inaccurate in a material respect when made or as of the applicable Closing Date. If the applicable Closing does not occur and Seller is in default, Seller shall pay all of the Shared Closing Costs.

Seller’s Defaults. In respect to the remedies afforded Purchaser pursuant to Paragraph 18.04 hereof, Seller shall be deemed to be in default under this Agreement in the event (i) Seller fails, for any reason (other than a default by Purchaser), to perform any of its material obligations under this Agreement that arise on or prior to the Phase I Closing within the time limits and in the manner provided for in this Agreement, (ii) any representation or warranty made by Seller in this Agreement is untrue or inaccurate in a material respect when made or as of the Phase I Closing Date, (iii) any Other Seller under the applicable Other Sale Agreement fails, for any reason (other than a default by Purchaser), to perform any of its material obligations under the subject Other Sale Agreement that arise on or prior to the Phase I Closing within the time limits and in the manner provided for in such Other Sale Agreement, or (iv) any representation or warranty made by any Other Seller in the applicable Other Sale Agreement is untrue or inaccurate in a material respect when made or as of the Phase I Closing Date. Notwithstanding the provisions of clauses (iii) and (iv) above, if Purchaser closes this transaction, any default or any inaccurate representation or warranty by any Other Seller under the terms of the applicable Other Sale Agreement shall be deemed waived in respect to this Agreement and it shall not be construed as a default by Seller hereunder. In respect to the remedies afforded Purchaser pursuant to Paragraph 18.05 hereof, Seller shall be deemed to be in default under this Agreement in the event Seller fails, for any reason (other than a default by Purchaser), to perform any of its material obligations under this Agreement that arise subsequent to the Phase I Closing (excluding the obligations of Seller to close this transaction in respect to subsequent Phase Closing, in which event the remedies afforded Purchaser pursuant to Paragraph 18.04 shall only apply) within the time limits and in the manner provided for in this Agreement or any representation or warranty made by Seller in this Agreement is untrue or inaccurate in a material respect when made or as of the applicable Closing Date. If the applicable Closing does not occur and Seller is in default, Seller shall pay all of the Shared Closing Costs.

Seller’s Defaults. In respect to the remedies afforded Purchaser pursuant to Paragraph 18.04 hereof, (a) Seller shall be deemed to be in default under this Agreement in the event (i) if Seller failsshall fail to meet, for any reason (other than a default by Purchaser)comply with, to or perform any of its material obligations under this Agreement that arise covenant, agreement, or obligation on or prior to the Phase I Closing Seller's part required within the time limits and in the manner required in this Agreement (subject to the cure period provided for below); provided all conditions precedent to Seller's performance have been fully satisfied; and provided further that any failure of Seller to cure timely objections made by Purchaser pursuant to SECTION 4.5 of this Agreement shall not constitute a default herein, except to the extent that Seller shall have affirmatively covenanted to Purchaser in writing to cure any such objection and in such case only with respect to the failure by Seller to cure any such objection as so covenanted. (b) In the event Seller shall be deemed to be in default, Purchaser may, as its SOLE AND EXCLUSIVE REMEDY for such default, either (i) terminate this AgreementAgreement (save and except any indemnity obligations of Purchaser) and be excused from further performance of its purchase obligation hereunder, and upon written notice by Purchaser to Seller and the Title Company, the Contract Deposit will be returned to Purchaser, or (ii) any representation waive the specific obligation or warranty by obligations which Seller in this Agreement is untrue or inaccurate in a material respect when made or as fails to perform and enforce specific performance of the Phase I obligation of Seller to convey the Property to Purchaser in accordance herewith without reduction of the Purchase Price, Purchaser hereby waiving any and all other remedies. Notwithstanding the foregoing, if prior to the Closing Date, (iii) any Other Seller under the applicable Other Sale Agreement fails, for any reason (other than a default by Purchaser), to perform any of its material obligations under the subject Other Sale Agreement that arise on or prior to the Phase I Closing within the time limits and in the manner provided for in such Other Sale Agreement, or (iv) any representation or warranty made by any Other Seller in the applicable Other Sale Agreement is untrue or inaccurate in a material respect when made or as of the Phase I Closing Date. Notwithstanding the provisions of clauses (iii) and (iv) above, if Purchaser closes this transaction, any default or any inaccurate representation or warranty by any Other Seller under the terms of the applicable Other Sale Agreement shall be deemed waived in respect to this Agreement and it shall not be construed as a default by Seller hereunder. In respect to the remedies afforded Purchaser pursuant to Paragraph 18.05 hereof, Seller shall be deemed to be in default and Purchaser elects to terminate this Agreement, then in addition to its right to receive a return of the Contract Deposit specified in clause (i) of this subsection (b), Purchaser my recover its actual out-of-pocket costs of up to, but not in excess of, $100,000.00. PURCHASE AND SALE AGREEMENT (XXXXX XXXX) DALLAS/200403 (c) Under no circumstances, except as of set forth in clause (b) above, shall Seller be liable to Purchaser for any consequential, exemplary or punitive damages as a result of its default under this Agreement or in connection with the event Seller fails, for any reason (other than a default by Purchaser), to perform any of its material obligations under this Agreement that arise subsequent to the Phase I Closing (excluding the obligations of Seller to close this transaction in respect to subsequent Phase Closing, in which event the remedies afforded Purchaser pursuant to Paragraph 18.04 shall only apply) within the time limits and in the manner provided for in this Agreement or any representation or warranty made by Seller in this Agreement is untrue or inaccurate in a material respect when made or as sale of the applicable Closing Date. If the applicable Closing does not occur and Seller is in default, Seller shall pay all of the Shared Closing CostsProperty.

Seller’s Defaults. In respect to the remedies afforded Purchaser pursuant to Paragraph 18.04 hereof, Seller shall be deemed to be in default under this Agreement in the event (i) Seller fails, for any reason (other than a default by Purchaser), to perform any of its material obligations under this Agreement that arise on or prior to the Phase I Closing within the time limits and in the manner provided for in this Agreement, (ii) any representation or warranty made by Seller in this Agreement is untrue or inaccurate in a material respect when made or as of the Phase I Closing 37 43 Date, (iii) any Other Seller under the applicable Other Sale Agreement fails, for any reason (other than a default by Purchaser), to perform any of its material obligations under the subject Other Sale Agreement that arise on or prior to the Phase I Closing within the time limits and in the manner provided for in such Other Sale Agreement, or (iv) any representation or warranty made by any Other Seller in the applicable Other Sale Agreement is untrue or inaccurate in a material respect when made or as of the Phase I Closing Date. Notwithstanding the provisions of clauses (iii) and (iv) above, if Purchaser closes this transaction, any default or any inaccurate representation or warranty by any Other Seller under the terms of the applicable Other Sale Agreement shall be deemed waived in respect to this Agreement and it shall not be construed as a default by Seller hereunder. In respect to the remedies afforded Purchaser pursuant to Paragraph 18.05 hereof, Seller shall be deemed to be in default under this Agreement in the event Seller fails, for any reason (other than a default by Purchaser), to perform any of its material obligations under this Agreement that arise subsequent to the Phase I Closing (excluding the obligations of Seller to close this transaction in respect to subsequent Phase Closing, in which event the remedies afforded Purchaser pursuant to Paragraph 18.04 shall only apply) within the time limits and in the manner provided for in this Agreement or any representation or warranty made by Seller in this Agreement is untrue or inaccurate in a material respect when made or as of the applicable Closing Date. If the applicable Closing does not occur and Seller is in default, Seller shall pay all of the Shared Closing Costs.