Common use of Seller's Failure to Perform Clause in Contracts

Seller's Failure to Perform. If the Closing fails to occur by reason of the Seller's failure or refusal to perform its obligations hereunder which has not been waived by the Purchaser, then the Purchaser, as its sole remedy hereunder, may (i) seek specific performance from the Seller, provided that the Purchaser is ready, willing and able to consummate the transaction and satisfy each and every obligation of Purchaser hereunder as of the Closing Date or (ii) terminate this Agreement by notice to the Seller. If the Purchaser elects to terminate this Agreement, the Deposit shall be refunded to the Purchaser as set forth in the Escrow Agreement attached hereto as Exhibit F. As a condition precedent to the Purchaser exercising any right it may have to bring an action for specific performance as the result of the Seller's failure or refusal to perform its obligations hereunder, the Purchaser must commence such an action for specific performance within ninety (90) days after the occurrence of such default. The Purchaser agrees that its failure to timely commence such an action for specific performance within such ninety (90) day period shall be deemed a waiver by the Purchaser, or any person or entity claiming by, through, or under Purchaser, including without limitation, Purchaser's Nominee (provided this Agreement is assigned in accordance with Section 19 hereof), of any right which it or they may have had to commence such an action. Notwithstanding anything to the contrary herein, if the Seller's failure or refusal to perform its obligations under this Agreement is a result of any action of, or failure to act by, the Purchaser or any of the Purchaser's Representatives, the Purchaser shall not be relieved of its obligations under this Agreement and Purchaser shall not be entitled to any right or remedy provided in this Section 14.3 or elsewhere in this Agreement.

Seller's Failure to Perform. If the Closing fails to occur (a) by reason of the Seller's Sellers' failure or refusal to perform its and/or observe their obligations hereunder which has not been waived by and covenants hereunder, or (b) due to the Purchaserfact that, as of the date of this Agreement, any of the representations and warranties of the Seller set forth in Section 6 hereof are untrue in any material respect, and the Purchaser notifies the Sellers of such circumstances prior to December 11, 1995, then the Purchaser, as its sole remedy hereunder, subject to Section 14.5, may (i) seek specific performance from the Seller, provided that the Purchaser is ready, willing and able to consummate the transaction and satisfy each and every obligation of Purchaser hereunder as of the Closing Date or (ii) terminate this Agreement by notice to the SellerSellers or (ii) seek specific performance from the Sellers. If the Purchaser elects to terminate this Agreement, the Deposit shall be refunded to Agreement rather than seek specific performance then the Purchaser shall, as set forth its sole remedy, subject to Section 14.5, for such failure or refusal to perform, be entitled to liquidated damages from the Sellers, in an aggregate amount equal to $500,000 (in the Escrow Agreement attached hereto as Exhibit F. event of any occurrence described in clause (a) above) or $300,000 (in the event of any occurrence described in clause (b) above), for all loss, damage and expenses suffered by the Purchaser, it being agreed that the Purchaser's damages are impossible to ascertain and neither party shall have any further rights, obligations or liabilities hereunder, except for the Surviving Obligations. As a condition precedent to the Purchaser exercising any right it may have to bring an action for specific performance as the result of the Seller's Sellers' failure or refusal to perform its their obligations hereunder, the Purchaser must commence such an action for specific performance within ninety (90) days after the occurrence of such defaultoriginally scheduled or any extended Closing Date. The Purchaser agrees that its failure to timely commence such an action for specific performance within such ninety (90) day period shall be deemed a waiver by the Purchaser, or any person or entity claiming by, through, or under Purchaser, including without limitation, Purchaser's Nominee (provided this Agreement is assigned in accordance with Section 19 hereof), it of any its right which it or they may have had to commence such an action. Notwithstanding anything to the contrary herein, if the Seller's failure or refusal to perform its obligations The Sellers' payment obligation under this Agreement is a result of any action of, or failure to act by, the Purchaser or any of the Purchaser's Representatives, the Purchaser shall not be relieved of its obligations under this Agreement and Purchaser shall not be entitled to any right or remedy provided in this Section 14.3 or elsewhere in shall survive the termination of this Agreement. The Sellers' payment obligation under this Section 14.3 shall be a joint and several obligation of Yield Plus, Dean Witter Realty Income Partnership II, L.P. and Dean Wxxxxx Xxxxxy Income Partnership III, L.P. 04.4.

Seller's Failure to Perform. If the Closing fails to occur by reason of the Seller's failure or refusal to perform its obligations hereunder which has not been waived by the Purchaser, then the Purchaser, as its sole remedy hereunder, may (i) seek specific performance from the Seller, provided that the Purchaser is ready, willing and able to consummate the transaction and satisfy each and every obligation of Purchaser hereunder as of the Closing Date or (ii) terminate this Agreement by notice to the Seller or (ii) seek specific performance from the Seller. If the Purchaser elects to terminate this Agreement, the Deposit shall be refunded to the Purchaser as set forth in the Escrow Agreement attached hereto as Exhibit F. As a condition precedent to the Purchaser exercising any right it may have to bring an action for specific performance as the result of the Seller's failure or refusal to perform its their obligations hereunder, the Purchaser must commence such an action for specific performance within ninety (90) days after the occurrence of such default. The Purchaser agrees that its failure to timely commence such an action for specific performance within such ninety (90) day period shall be deemed a waiver by the Purchaser, or any person or entity claiming by, through, or under Purchaser, including without limitation, Purchaser's Nominee (provided this Agreement is assigned in accordance with Section 19 hereof), it of any its right which it or they may have had to commence such an action. Notwithstanding anything to the contrary herein, if the Seller's failure or refusal to perform its obligations under this Agreement is a result of any action of, or failure to act by, the Purchaser or any of the Purchaser's Representatives, the Purchaser shall not be relieved of its obligations under this Agreement and Purchaser shall not be entitled to any right or remedy provided in this Section 14.3 or elsewhere in this Agreement. Escrow. The Escrow Agent shall hold the Downpayment and all interest accrued thereon, if any (collectively, the "Deposit") in escrow and shall dispose of the Deposit only in accordance with the provisions of that certain Escrow Agreement of even date herewith by and among the Escrow Agent, the Purchaser and the Seller relating to the Property (the "Escrow Agreement") in the form of Exhibit I hereto. Simultaneously with their execution and delivery of this Agreement, the Purchaser and the Seller shall furnish the Escrow Agent with their true Federal Taxpayer Identification Numbers so that the Escrow Agent may file appropriate income tax information returns with respect to any interest earned on or credited to the Deposit. The party entitled to the economic benefit of the Deposit representing interest earned on the Downpayment shall be the party responsible for the payment of any tax due thereon. The provisions of the Escrow Agreement shall survive the termination of this Agreement and the Closing.

Seller's Failure to Perform. If the Closing fails to occur Upon a default by reason of the Seller's failure or refusal to perform its obligations hereunder which has not been waived by the Purchaser, then the Purchaser, Purchaser may as its sole remedy hereunder, may and exclusive alternative remedies: (i) seek specific performance from terminate this Contract and receive (a) a refund of the Xxxxxxx Money together with interest earned thereon and (b) solely in the event of Seller's willful default after notice and a five (5) day opportunity to cure, payment to Purchaser of all of its actual third party costs and expenses incurred in connection with this transaction up to a maximum of Fifty Thousand Dollars ($50,000.00), provided that the Purchaser is readya failure to obtain estoppel certificates as required in Section 4(d) hereof shall not constitute a willful default by Seller under this Contract, willing and able to consummate the transaction and satisfy each and every obligation of Purchaser hereunder as of the Closing Date or (ii) terminate this Agreement by notice to the Seller. If the Purchaser elects to terminate this Agreement, the Deposit shall be refunded to the Purchaser as set forth in the Escrow Agreement attached hereto as Exhibit F. As a condition precedent to the Purchaser exercising any right it may have to bring commence an action for specific performance as the result or (iii) waive all claims on account of such default and proceed to Closing. Election of one or more of the Seller's failure or refusal to perform its obligations hereunderaforesaid remedies shall preclude an election of others. If Buyer terminates this Contract and receives the Xxxxxxx Money, the Purchaser must commence such an action for specific performance within ninety (90) days after the occurrence of such default. The Purchaser agrees that its failure to timely commence such an action for specific performance within such ninety (90) day period Buyer and Seller shall be deemed a waiver by the Purchaser, or any person or entity claiming by, through, or under Purchaser, including without limitation, Purchaser's Nominee (provided this Agreement is assigned in accordance with Section 19 hereof), relieved of any right which it or they may have had to commence such an action. Notwithstanding anything to the contrary herein, if the Seller's failure or refusal to perform its all obligations and liabilities under this Agreement is Contract (except as otherwise provided in this Contract) at law and in equity. Other than as set forth above, Buyer shall not have any claim for damages against any Seller Party as a result of any action of, default or failure to act byperform by Seller or Seller's Agent prior to Closing which results in Closing not being consummated. Other than the failure to tender settlement on the Closing Date, the Purchaser or any which shall not require notice and an opportunity to cure, Seller shall be in default of this Contract only if Buyer has provided Seller with a written notice of the Purchaser's Representativesbreach or failure which Buyer asserts constitutes a default of this Contract, the Purchaser shall not be relieved describing same with reasonable specificity, and Seller fails to cure such default within ten (10) days after receipt of its obligations under this Agreement and Purchaser shall not be entitled to any right or remedy provided in this Section 14.3 or elsewhere in this Agreementsuch notice from Buyer.

Seller's Failure to Perform. If the Closing fails to occur by reason of the Seller's failure or refusal to perform its obligations hereunder which has not been waived by the Purchaser, then, if the Purchaser is not then in default on its obligations hereunder, the Purchaser, as its sole remedy hereunder, may (i) seek specific performance from the Seller, provided that the Purchaser is ready, willing and able to consummate the transaction and satisfy each and every obligation of Purchaser hereunder as of the Closing Date or (ii) terminate this Agreement by notice to the Seller. If the Purchaser elects to terminate this Agreement, Seller and the Deposit shall promptly be refunded returned to Purchaser, or (ii) seek specific performance from the Purchaser as set forth in the Escrow Agreement attached hereto as Exhibit F. Seller. As a condition precedent to the Purchaser exercising any right it may have to bring an action for specific performance as the result of the Seller's failure or refusal to perform its their obligations hereunder, the Purchaser must commence such an action for specific performance within ninety (90) days after the occurrence of such default. The Purchaser agrees that its failure to timely commence such an action for specific performance within such ninety (90) day period shall be deemed a waiver by the Purchaser, or any person or entity claiming by, through, or under Purchaser, including without limitation, Purchaser's Nominee (provided this Agreement is assigned in accordance with Section 19 hereof), it of any its right which it or they may have had to commence such an action. Notwithstanding anything to the contrary herein, if the Seller's failure or refusal to perform its obligations under this Agreement is a result of any action of, or failure to act by, the Purchaser or any of the Purchaser's Representatives, the Purchaser shall not be relieved of its obligations under this Agreement and Purchaser shall not be entitled to any right or remedy provided in this Section 14.3 or elsewhere in this Agreement. Escrow. The Escrow Agent shall hold the Downpayment in an interest-bearing account in accordance with the Escrow Agreement (as hereinafter defined) (the Downpayment and all interest thereon, collectively, the "Deposit") in escrow and shall dispose of the Deposit only in accordance with the provisions of that certain Escrow Agreement of even date herewith by and among the Escrow Agent, the Purchaser and the Seller relating to the Property (the "Escrow Agreement") in the form of Exhibit L hereto. Simultaneously with their execution and delivery of this Agreement, the Purchaser and the Seller shall furnish the Escrow Agent with their true Federal Taxpayer Identification Numbers so that the Escrow Agent may file appropriate income tax information returns with respect to any interest earned on or credited to the Deposit. The party entitled to the economic benefit of the Deposit representing interest earned on the Downpayment shall be the party responsible for the payment of any tax due thereon. The provisions of the Escrow Agreement shall survive the termination of this Agreement and the Closing.