Common use of Sellers’ Remedy for Pre-Closing Default Clause in Contracts

Sellers’ Remedy for Pre-Closing Default. (a) If Purchaser shall have made any representation or warranty in Section 7 which shall be untrue in any material respect when made or updated as herein provided, or if Purchaser shall fail to perform when it is obligated to do so any of the material covenants and agreements contained herein, then Seller’s sole remedy shall be (i) to terminate this Agreement and this Agreement shall be of no further force and effect, in which event Escrow Agent shall promptly disburse to Seller the Deposit; or (ii) to consummate the transactions contemplated hereby, notwithstanding such default, without any abatement or reduction in the Purchase Price on account thereof. PURCHASER AND SELLER AGREE THAT THE DEPOSIT CONSTITUTES A FAIR AND REASONABLE AMOUNT TO BE RECEIVED BY SELLER AS AGREED AND LIQUIDATED DAMAGES FOR PURCHASER’S DEFAULT UNDER THIS AGREEMENT, AS WELL AS A FAIR, REASONABLE AND CUSTOMARY AMOUNT TO BE PAID AS LIQUIDATED DAMAGES TO SELLER IN AN ARM’S LENGTH TRANSACTION OF THE TYPE CONTEMPLATED BY THIS AGREEMENT UPON A DEFAULT BY THE PURCHASER THEREUNDER; AND RECEIPT BY SELLER OF THE DEPOSIT UPON PURCHASER’S DEFAULT HEREUNDER SHALL NOT CONSTITUTE A PENALTY OR A FORFEITURE.

Sellers’ Remedy for Pre-Closing Default. (a) If Purchaser shall have made any representation or warranty in Section 7 which shall be untrue in any material respect when made or updated as herein provided, or if Purchaser shall fail to perform when it is obligated to do so any of the material covenants and agreements contained hereinherein and such condition or failure continues for a period of ten (10) Business Days after written notice thereof from Sellers, then Seller’s Sellers' sole remedy shall be (i) to terminate this Agreement and this Agreement shall be of no further force and effect, except with respect to provisions hereof which by their express terms survive a termination of this Agreement in which event Escrow Agent the Title Company shall promptly disburse to Seller the DepositDISBURSE TO SELLERS THE DEPOSIT; or (ii) to consummate the transactions contemplated hereby, notwithstanding such default, without any abatement or reduction in the Purchase Price on account thereof. PURCHASER AND SELLER SELLERS AGREE THAT THE DEPOSIT CONSTITUTES A FAIR AND REASONABLE AMOUNT TO BE RECEIVED BY SELLER SELLERS AS AGREED AND LIQUIDATED DAMAGES FOR PURCHASER’S 'S DEFAULT UNDER THIS AGREEMENT, AS WELL AS A FAIR, REASONABLE AND CUSTOMARY AMOUNT TO BE PAID AS LIQUIDATED DAMAGES TO A SELLER IN AN ARM’S 'S LENGTH TRANSACTION OF THE TYPE CONTEMPLATED BY THIS AGREEMENT UPON A DEFAULT BY THE PURCHASER THEREUNDER; AND RECEIPT BY SELLER SELLERS OF THE DEPOSIT UPON PURCHASER’S 'S DEFAULT HEREUNDER SHALL NOT CONSTITUTE A PENALTY OR A FORFEITURE. It is understood and agreed that for purposes of this Section 11.2, if a default results from a false representation or warranty, such default shall be deemed cured if the events, conditions, acts or omissions giving rise to the falsehood are cured within the applicable cure period even though, as a technical matter, such representation or warranty was false as of the date actually made. (b) If any Seller with knowledge of (i) a default in any of the covenants, agreements or obligations to be performed by Purchaser under this Agreement and/or (ii) any breach of or inaccuracy in any representation or warranty of Purchaser made in this Agreement which would entitle any Seller to terminate this Agreement, and nonetheless elects to proceed to Closing, then, upon the consummation of the Closing, Sellers shall be deemed to have waived any such default and/or breach or inaccuracy and shall have no claim against Purchaser with respect thereto.

Sellers’ Remedy for Pre-Closing Default. (a) If Purchaser shall have made any representation or warranty in Section 7 which shall be untrue in any material respect when made or updated as herein provided, or if Purchaser shall fail to perform when it is obligated to do so any of the material covenants and agreements contained hereinherein and such condition or failure continues for a period of ten (10) Business Days after written notice thereof from Sellers’ Representative, then Seller’s Sellers’ sole remedy shall be either: (ia) to terminate this Agreement and this Agreement shall be of no further force and effect, except with respect to provisions hereof which by their express terms survive a termination of this Agreement in which event Escrow Agent the Title Company shall promptly disburse to Seller Sellers the Deposit; or or (iib) to consummate the transactions contemplated hereby, notwithstanding such default, without any abatement or reduction in the Purchase Price on account thereof. PURCHASER AND SELLER SELLERS AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE, IF NOT IMPOSSIBLE, TO ASCERTAIN WITH ANY DEGREE OF CERTAINTY THE AMOUNT OF DAMAGES WHICH WOULD BE SUFFERED BY SELLERS IF THIS AGREEMENT IS TERMINATED AS SET FORTH IN THIS SECTION 10.4 AND PURCHASER AND SELLERS AGREE THAT THE DEPOSIT CONSTITUTES A FAIR AND REASONABLE AMOUNT TO BE RECEIVED BY SELLER SELLERS AS AGREED AND LIQUIDATED DAMAGES FOR PURCHASER’S DEFAULT UNDER TERMINATION OF THIS AGREEMENTAGREEMENT AS SET FORTH IN THIS SECTION 10.4, AS WELL AS A FAIR, REASONABLE AND CUSTOMARY AMOUNT TO BE PAID AS LIQUIDATED DAMAGES TO A SELLER IN AN ARM’S LENGTH TRANSACTION OF THE TYPE CONTEMPLATED BY THIS AGREEMENT UPON A DEFAULT BY THE PURCHASER THEREUNDER; AND RECEIPT BY SELLER SELLERS OF THE DEPOSIT UPON PURCHASER’S DEFAULT HEREUNDER SHALL NOT CONSTITUTE A PENALTY OR A FORFEITURE.