Seller’s Remedies. If Purchaser fails to perform its obligations pursuant to this Contract at or prior to Closing for any reason except failure by Seller to perform hereunder, or if prior to Closing any one or more of Purchaser's representations or warranties are breached in any material respect, and this failure or breach is not cured within three (3) Business Days after written notice from Seller to Purchaser (other than failure to close for any reason unrelated to a default by Seller, for which there shall be no notice or cure period), then Seller, as its SOLE and EXCLUSIVE remedy (except as provided in Sections 6(c) and 9), may (i) terminate this Contract and receive the Xxxxxxx Money as liquidated damages and not as penalty, in full satisfaction of claims against Purchaser hereunder, or (ii) waive Purchaser’s failure or breach and proceed to Closing. Seller and Purchaser agree that Seller's damages resulting from Purchaser's default are difficult, if not impossible, to determine, and the Xxxxxxx Money is a fair estimate of those damages and has been agreed to in an effort to cause the amount of damages to be certain. Notwithstanding anything in this Section 11(a) to the contrary, in the event of Purchaser's default or termination of this Contract, Seller shall have all remedies available at law or in equity if Purchaser or any party related to or affiliated with Purchaser is asserting any claims or right to the Property that would otherwise delay or prevent Seller from having clear, indefeasible and marketable title to the Property other than as a result of Purchaser’s exercise of its remedies under subsection (b) hereof. If Closing is consummated, then Seller shall have all remedies available at law or in equity if Purchaser fails to perform any post-closing obligation of Purchaser under this Contract.
Seller’s Remedies. IF PURCHASER DEFAULTS IN ITS OBLIGATION TO ACQUIRE THE PROPERTY, THEN SELLER, AS ITS SOLE AND EXCLUSIVE REMEDY, SHALL BE ENTITLED TO TERMINATE THIS AGREEMENT AND TO RECEIVE OR RETAIN THE DEPOSIT AND THE INITIAL PAYMENT AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, IN FULL SATISFACTION OF CLAIMS AGAINST PURCHASER HEREUNDER (EXCEPT FOR ANY CLAIM FOR BREACH OF A TERMINATION SURVIVING OBLIGATION, AND IF THE CLOSING OCCURS, EXCEPT FOR ANY CLAIM FOR BREACH OF ANY OBLIGATION THAT EXPRESSLY SURVIVES THE TERMINATION OF THIS AGREEMENT OR THE CLOSING PURSUANT TO THE TERMS OF THIS AGREEMENT, FOR WHICH CLAIMS THERE SHALL BE NO LIMITATION OR RESTRICTION ON LIABILITY). SELLER AND PURCHASER AGREE THAT SELLER'S DAMAGES RESULTING FROM PURCHASER'S DEFAULT ARE DIFFICULT, IF NOT IMPOSSIBLE, TO DETERMINE AND THAT THE SUM OF THE DEPOSIT AND THE INITIAL PAYMENT IS A FAIR ESTIMATE OF THOSE DAMAGES WHICH HAS BEEN AGREED TO IN AN EFFORT TO CAUSE THE AMOUNT OF SAID DAMAGES TO BE CERTAIN. SELLER AND PURCHASER WITNESS THEIR AGREEMENT TO THIS SECTION 9.1 BY INITIALING IMMEDIATELY BELOW. INITIALS OF SELLER INITIALS OF PURCHASER
Seller’s Remedies. In the event Purchaser fails to pay any amount due and owing hereunder, fails to perform any other obligation hereunder; Seller shall have the right to exercise one or more of the following remedies: (a) recover the balance of all amounts due hereunder; (b) enter any premises where the Equipment may be located and take possession of the Equipment or render it unusable and retain all prior payments as partial compensation for its use and depreciation; (c) require Purchaser to assemble the Equipment for safe shipment and make it available to Seller; (d) incur collection and legal expenses (including reasonable attorneys’ fees) in exercising any of its rights and remedies upon default, which Purchaser shall pay and which shall become part of Seller’s reasonable expenses of retaking, repairing, holding and reselling, and (e) pursue any other remedy permitted by law. Should legal proceedings be instituted by Seller to recover any amounts due hereunder or to take procession of the Equipment, Purchaser shall pay all collection expenses (including reasonable attorneys’ fees) and hereby waives trial by jury. If more than one Purchaser is named in this Agreement, the liability of each shall be joint and several. Seller’s rights shall be cumulative and action on one shall not be deemed to constitute an election or waiver of the other rights to which Seller may be entitled. Waiver by Seller of a breach or default shall not constitute waiver of any other breach or default by Purchaser or waiver of any of Seller’s rights.
Seller’s Remedies. Purchaser and Seller acknowledge that it would be extremely impractical and difficult to ascertain the actual damages which would be suffered by Seller if Purchaser fails to consummate the purchase and sale contemplated herein for any reason other than Seller's default hereunder in any material respect or the failure of condition precedent to Purchaser's obligation to close hereunder. Purchaser and Seller have considered carefully, the expenses of Seller incurred in connection with the preparation of this Agreement and Seller's performance hereunder, and the other damages, general and special, which Purchaser and Seller realize and recognize Seller will sustain but which Seller cannot at this time calculate with absolute certainty. Based on all those considerations, Purchaser and Seller have agreed that the damage to Seller in such event would reasonably be expected to be equal to the sum of Four Million Dollars ($4,000,000). Accordingly, if Purchaser fails to consummate the purchase of the Property in accordance with the terms of this Agreement solely as a result of a default by Purchaser, then Seller shall have the right to recover Four Million Dollars ($4,000,000) as full and complete liquidated damages. THE PARTIES FURTHER ACKNOWLEDGE AND AGREE THAT (A) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF FOUR MILLION DOLLARS IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT, AND (B) THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. SELLER: __________ PURCHASER: ___________
Seller’s Remedies. In the event Buyer fails to take title when title is tendered by Seller, Seller at its option may seek specific performance of this Agreement or may ipso facto terminate this Agreement and retain Buyer’s Deposit.
Seller’s Remedies. If, for any reason whatsoever (other than the failure of a condition set forth in Section 3.1 and other than a termination of this Agreement pursuant to Section 5.3, Section 10.2, Article XII or Section 13.6), Purchaser fails to complete the acquisition as herein provided, Purchaser shall be in breach of its obligations hereunder and Seller shall be released from any further obligations hereunder. BY INITIALING BELOW, PURCHASER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT SELLER’S ACTUAL DAMAGES IN THE EVENT OF SUCH A BREACH OF THIS AGREEMENT BY PURCHASER WOULD BE EXTREMELY DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT THE AMOUNT OF THE DEPOSIT IS THE PARTIES’ BEST AND MOST ACCURATE ESTIMATE OF THE DAMAGES SELLER WOULD SUFFER IN THE EVENT THE TRANSACTION PROVIDED FOR IN THIS AGREEMENT FAILS TO CLOSE, AND THAT SUCH ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING ON THE EFFECTIVE DATE HEREOF. PURCHASER AND SELLER AGREE THAT SELLER’S RIGHT TO RETAIN THE DEPOSIT SHALL BE THE SOLE REMEDY OF SELLER AT LAW IN THE EVENT OF SUCH A BREACH OF THIS AGREEMENT BY PURCHASER. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION 10.1, IF PURCHASER BRINGS AN ACTION AGAINST SELLER FOR AN ALLEGED BREACH OR DEFAULT BY SELLER OF ITS OBLIGATIONS UNDER THIS AGREEMENT, RECORDS A LIS PENDENS OR OTHERWISE ENJOINS OR RESTRICTS SELLER’S ABILITY TO SELL AND TRANSFER THE PROPERTY OR REFUSES TO CONSENT TO OR INSTRUCT RELEASE OF THE DEPOSIT TO SELLER IF REQUIRED BY ESCROW AGENT (EACH A “PURCHASER’S ACTION”), SELLER SHALL NOT BE RESTRICTED BY THE PROVISIONS OF THIS SECTION 10.1 FROM BRINGING AN ACTION AGAINST PURCHASER SEEKING EXPUNGEMENT OR RELIEF FROM ANY IMPROPERLY FILED LIS PENDENS, INJUNCTION OR OTHER RESTRAINT, AND/OR RECOVERING FEES, COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES) WHICH SELLER MAY SUFFER OR INCUR AS A RESULT OF ANY PURCHASER’S ACTION BUT ONLY TO THE EXTENT THAT SELLER IS THE PREVAILING PARTY; AND THE AMOUNT OF ANY SUCH FEES, COSTS AND EXPENSES AWARDED TO SELLER SHALL BE IN ADDITION TO THE LIQUIDATED DAMAGES SET FORTH HEREIN. NOTHING IN THIS AGREEMENT SHALL, HOWEVER, BE DEEMED TO LIMIT PURCHASER’S LIABILITY TO SELLER FOR DAMAGES OR INJUNCTIVE RELIEF FOR BREACH OF PURCHASER’S INDEMNITY OBLIGATIONS UNDER SECTION 5.2.5 ABOVE OR FOR ATTORNEYS’ FEES AND COSTS AS PROVIDED IN SECTION 16.5 BELOW. THE PROVISIONS OF THIS SECTION 10.1 SHALL SURVIVE TERMINATION OF THIS AGREEMENT. ACCEPTED AND AGREED TO: Seller Purchaser
Seller’s Remedies. In the event Purchaser shall be deemed to be in default hereunder Seller may, at Seller's sole option, do any one or more of the following: (i) terminate this Agreement by written notice delivered to Purchaser on or before the Closing; and/or (ii) enforce specific performance of this Agreement against Purchaser including Seller's reasonable costs and attorneys fees in connection therewith; and/or (iii) exercise any other right or remedy Seller 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 Seller in connection herewith.
Seller’s Remedies. The sale of the Property is a cash sale and is not subject to any financing contingency. The Buyer may not delay the Closing Date or terminate this Agreement due to the Buyer’s inability to obtain financing. If the Buyer fails to close on the Closing Date due to a lack of financing, the Buyer shall be in default of this Agreement and the Seller may, but shall not obligated to, terminate this Agreement and retain the Deposit Money made hereunder as liquidated damages. The Parties agree that the actual damages upon the Buyer’s default would be extremely difficult or impracticable to ascertain and that the Deposit Money, which has been negotiated, represents a fair and reasonable amount of damages that the Seller will sustain if the Buyer violates or fails to close on the Closing Date due to inability to obtain financing or lack of funding. In the event the Buyer violates or fails to fulfill or perform any of the terms and conditions of this Agreement required to be performed by the Buyer prior to Closing or if the Buyer fails to consummate the acquisition of the Property as required hereunder, the Seller may terminate this Agreement upon written notice to the Buyer and the Deposit Money shall be delivered to the Seller by the Escrow Agent as the Seller’s sole and exclusive remedy, as liquidated damages for such violation or failure, whereupon this Agreement shall become null and void, and neither party shall have any further rights or obligations hereunder, except for such obligations as expressly survive the termination of this Agreement. The Parties agree the actual damages upon the Buyer’s default would be extremely difficult or impracticable to ascertain and the Deposit Money, which has been negotiated, represents a fair and reasonable amount of damages that the Seller will sustain if the Buyer violates or fails to fulfill and perform any of the terms and conditions of this Agreement required to be performed by the Buyer prior to Closing under the circumstances existing at the time hereof. Notwithstanding anything to the contrary set forth in this Agreement, in no event will the Seller be liable to the Buyer or to any representatives, agents, affiliates or subsidiaries of the Buyer, for any special, exemplary, indirect or consequential damages, including without limitation any lost profits, loss of business, business interruption, lost savings or other incidental or punitive damages, even if the Seller has been advised of the possibility of such damages.
Seller’s Remedies. Upon failure of Buyer to comply herewith, Seller may either:
Seller’s Remedies. Upon the failure by Buyer to fulfill or perform any undertaking, commitment, or obligation provided for herein on the part of Buyer that is required to be fulfilled on or prior to the Closing Date, Seller, at its sole option, may (i) enforce specific performance of this Agreement or (ii) pursue any rights or remedies available at law or in equity.
