Common use of The Seller’s Default Clause in Contracts

The Seller’s Default. Notwithstanding anything in this Agreement to the contrary, if: (i) any representation and warranty of the Seller contained in this Agreement shall not be true and correct as of the Closing Date; (ii) any condition to the Purchaser’s obligation to close shall fail to be fulfilled or waived; or (iii) the Seller shall be in material default in the performance of any of its covenants or obligations under this Agreement, then the Purchaser’s remedies prior to the Closing shall be to elect: (x) to terminate this Agreement and thereupon to receive a return of the Deposit and to bring an action against the Seller seeking reimbursement for the Purchaser’s direct, out-of-pocket reasonable costs, including, but not limited to third party due diligence fees such as inspections, survey, title work, legal fees, appraisal fees and loan fees, provided the amount of such reimbursement shall not exceed $[Amount of Deposit]; or (y) to bring an action for specific performance to compel the Seller to cure any such material default, breach of warranty or misrepresentation or to fulfill any such condition or perform any such covenant or agreement of the Seller contained in this Agreement to be performed by the Seller on or prior to the Closing Date and, as part of any such action for specific performance, to seek to recover any direct, out-of-pocket reasonable costs incurred by the Purchaser in connection with such specific performance action, provided the amount of such reimbursement shall not exceed $[Amount of Deposit]; or (z) to expressly waive in writing any such default, breach of warranty or misrepresentation or the nonfulfillment of any such condition or failure of the Seller to perform any such covenant or agreement of the Seller contained in this Agreement to be performed by the Seller on or before the Closing Date. Upon completion of the Closing, the foregoing remedies shall be deemed to be waived by Purchaser.