Default Clause Example with 6 Variations from Business Contracts

Default. Subject to Section 8.3 below, in In the event that Seller breaches any of its covenants, representations or warranties set forth in this Agreement, including failure by Seller shall fail to consummate this Agreement for any reason, except Purchaser's default for a Purchaser default, or a termination the exercise of any right to terminate this Agreement that Seller has under the express terms of this Agreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof, Agreem...ent, Purchaser shall be entitled as its sole and exclusive remedies, at law or in equity, to either (i) terminate this Agreement and receive a refund of the Earnest Money, and thereafter neither party shall have any further obligations hereunder other than the Surviving Obligations; or (ii) pursue the remedy of specific performance of Seller's obligations under this Agreement; provided, however, that in if Seller's failure to consummate this Agreement is due to Seller's Wrongful Acts (defined below) and Purchaser elects to terminate this Agreement, or the event remedy of specific performance for any reason of Seller's obligations under this Agreement is not available, then Purchaser shall be entitled to recover damages from Seller as described in Section 8.1(ii) below, or (ii) terminate this Agreement, receive a refund of the Earnest Money, Money and pursue an action against Seller to recover any shall reimburse Purchaser the amount of Purchaser's actual costs and all damages expenses incurred directly or indirectly by Purchaser and/or any affiliates of Purchaser in connection with the transaction contemplated by (a) negotiating this Agreement, including consequential damages, punitive damages (b) conducting its due-diligence inspection and lost profits. 8.2 Breach analysis of the Property, and (c) obtaining (or attempting to obtain) debt and/or equity financing for Purchaser's acquisition of the Property which in the aggregate shall not exceed One Hundred Thousand and No/100 Dollars ($100,000.00) ("Purchaser's Costs"), within ten (10) days after submission by Purchaser to Seller of invoices reasonably supporting such costs. It shall be a condition to Purchaser's right to seek or obtain specific performance that that Purchaser must file suit for specific performance within ninety (90) days following the date provided in this Agreement for Closing (failing which Purchaser shall have waived the right to do so). As used in this Agreement, "Seller's Wrongful Act" means an intentional affirmative act or failure to act by Seller constituting fraud, gross negligence or willful misconduct. 8.2Breach by Purchaser. Subject to Section 8.3 below, in In the event that Purchaser breaches any of its covenants, representations or warranties set forth in this Agreement, including failure by Purchaser shall fail to consummate this Agreement for any reason, except Seller's for a Seller default or a termination the exercise of any right to terminate this Agreement that Purchaser has under the express terms of this Agreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof, Agreement, Seller, as its sole and exclusive remedy, may terminate this Agreement and thereupon shall be entitled to receive the Earnest Money as liquidated damages (and not as a penalty). Seller and Purchaser have made this provision for liquidated damages because it would be difficult to calculate, on the date hereof, the amount of actual damages for such breach, and Seller and Purchaser agree that the Earnest Money represents a reasonable forecast of such damages. 8.3 Notice and Cure. The limitations imposed on Seller by this Section 8.2 shall not apply to Purchaser's indemnities or Seller's remedies under Section 4.2, but shall be subject to the provisions of Section 8.3. 8.3Actual Damages Only. In the event any case where Seller or Purchaser fails expressly is entitled to perform pursue damages under this Agreement due to the breach or default of the other (excluding Seller's right to liquidated damages under Section 8.2), Seller and Purchaser shall each be liable to the other only for actual damages for any of its obligations breach or default under this Agreement, and Seller and Purchaser each waives the non-defaulting party shall provide the defaulting party 19 right to collect special, consequential, punitive or any other damages other than actual damages in connection with notice this transaction and five (5) days to cure such default, prior to pursuing any remedies available with respect to such default; provided, however, that (i) no such notice and cure shall be provided with respect to a party's default in failing to timely close, or with respect to any party's anticipatory breach of this Agreement, and (ii) except only for any special, consequential, punitive or other damages incurred by an indemnified party to an unrelated third party which are indemnified against by an indemnifying party under an indemnity set forth in no event shall any such notice and cure period result in an extension of the Closing Date. this Agreement. 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Default. Subject to Section 8.3 below, in the event that Seller breaches any of its covenants, representations or warranties set forth in this Agreement, including failure by Seller to consummate this Agreement for any reason, except Purchaser's default or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof, Purchaser shall be entitled to either (i) pursue the remedy of specific performance of Seller's obligations under this Agreement; provided,... however, that in the event specific performance for any reason is not available, then Agreement, if Purchaser shall be entitled to recover damages from Seller as described in Section 8.1(ii) below, has fully performed its obligations under this Agreement, or (ii) terminate this Agreement, receive a refund of the Earnest Money, and pursue an action against Seller to recover any and all Purchaser's actual damages incurred directly or indirectly by Purchaser and/or any affiliates of Purchaser in connection with the transaction contemplated by this Agreement, including consequential from Seller, such damages, punitive damages and lost profits. 8.2 Breach by Purchaser. Subject however, not to Section 8.3 below, in the event that Purchaser breaches any of its covenants, representations or warranties set forth in this Agreement, including failure by Purchaser to consummate this Agreement for any reason, except Seller's default or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof, Seller, as its sole and exclusive remedy, may terminate this Agreement and thereupon shall be entitled to receive the Earnest Money as liquidated damages (and not as a penalty). Seller and Purchaser have made this provision for liquidated damages because it would be difficult to calculate, on the date hereof, exceed the amount of actual damages for such breach, Fifty Thousand and Seller and Purchaser agree that the Earnest Money represents a reasonable forecast of such damages. no/100 Dollars ($50,000.00). 8.2 BREACH BY PURCHASER. IN THE EVENT ESCROW FAILS TO CLOSE DUE TO A DEFAULT BY PURCHASER UNDER THIS AGREEMENT NOT CURED WITHIN THE APPLICABLE NOTICE AND CURE PERIOD SET FORTH IN SECTION 8.3 BELOW, PURCHASER AND SELLER AGREE THAT SELLER WOULD SUFFER DAMAGES IN AN AMOUNT WHICH WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ASCERTAIN. IN ADDITION, PURCHASER WISHES TO HAVE A LIMITATION PLACED UPON PURCHASER'S POTENTIAL LIABILITY IN THE EVENT OF A DEFAULT BY PURCHASER, AND WISHES TO INDUCE SELLER TO WAIVE OTHER REMEDIES. PURCHASER AND SELLER, AFTER DUE NEGOTIATION, AGREE THAT THE AMOUNT OF THE EARNEST MONEY AT THE TIME OF PURCHASER'S DEFAULT REPRESENTS A REASONABLE ESTIMATE OF THE DAMAGES WHICH SELLER WILL SUSTAIN IF ESCROW FAILS TO CLOSE DUE TO AN EVENT OF A DEFAULT BY PURCHASER WHICH IS NOT CURED WITHIN THE APPLICABLE NOTICE AND CURE PERIOD. IN THE EVENT OF A DEFAULT BY PURCHASER WHICH IS NOT CURED WITHIN THE APPLICABLE NOTICE AND CURE PERIOD, SELLER MAY TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO PURCHASER, CANCEL THE ESCROW AND RETAIN THE EARNEST MONEY AS LIQUIDATED DAMAGES. SUCH RETENTION OF THE EARNEST MONEY IS SELLER'S SOLE AND EXCLUSIVE REMEDY AND IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER. SELLER WAIVES ANY RIGHTS IT MAY HAVE TO SEEK SPECIFIC PERFORMANCE UNDER CALIFORNIA CIVIL CODE SECTION 3389. FOLLOWING TERMINATION OF THIS AGREEMENT, CANCELLATION OF THE ESCROW, AND RETENTION OF THE EARNEST MONEY AS LIQUIDATED DAMAGES, PURCHASER AND SELLER SHALL HAVE NO FURTHER RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT, EXCEPT FOR THE SURVIVING OBLIGATIONS AND EXCEPT THAT PURCHASER SHALL REIMBURSE SELLER FOR THE COST OF THE SURVEY AND SHALL PAY ALL ESCROW CANCELLATION AND TITLE CHARGES IF ESCROW FAILS TO CLOSE DUE TO PURCHASER'S DEFAULT. THE PARTIES HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION AND BY THEIR SIGNATURES IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS. SELLER: PURCHASER: 8.3 Notice and Cure. In the event of a default by Seller or Purchaser fails to perform any of its obligations under this Agreement, the non-defaulting party shall provide the defaulting party with notice and five (5) ten (10) days to cure such default, prior to pursuing any remedies available with respect to such default; provided, however, that (i) no such notice and cure shall need be provided with respect to a party's default in failing to timely close, or with respect to any party's anticipatory breach of this Agreement, and (ii) in no event shall any such notice and cure period result in an extension of the Closing Date. Date unless specifically indicated otherwise herein. View More

Default. Subject to In the event of a default by Seller under this Agreement not cured within the applicable notice and cure period set forth in Section 8.3 below, in the event that Seller breaches any of its covenants, representations or warranties set forth in this Agreement, including failure by Seller to consummate this Agreement for any reason, except Purchaser's default or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof, Purchaser shal...l be entitled to either (i) pursue the remedy of specific performance of Seller's obligations under this Agreement; provided, however, that in the event specific performance for any reason is not available, then Purchaser shall be entitled to recover damages from Seller as described in Section 8.1(ii) below, Agreement, or (ii) terminate this Agreement, receive a refund of the Earnest Money, and pursue an action against Seller to 19 recover any and all damages actual out-of-pocket expenses incurred directly or indirectly by Purchaser and/or and any affiliates of Purchaser affiliate thereof in connection with the transaction contemplated by this Agreement, Agreement. Notwithstanding anything contained in this Agreement to the contrary, in the event Seller, directly or indirectly, sells the Property for a purchase price in excess of the Purchase Price, within a period of one (1) year following the date of a default by Seller hereunder, including consequential damages, punitive by virtue of the direct or indirect transfer of ownership interests in Seller, then Seller furthermore shall be obligated to pay any such excess amount to Purchaser, in cash, as additional damages and lost profits. for Seller's default hereunder, which obligation shall expressly survive the termination of this Agreement. 8.2 Breach by Purchaser. Subject to In the event of a default by Purchaser under this Agreement not cured within the applicable notice and cure period set forth in Section 8.3 below, in the event that Purchaser breaches any of its covenants, representations or warranties set forth in this Agreement, including failure by Purchaser to consummate this Agreement for any reason, except Seller's default or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof, Seller, as its sole and exclusive remedy, may terminate this Agreement and thereupon shall be entitled to receive the Earnest Money as liquidated damages (and not as a penalty). Seller and Purchaser have made this provision for liquidated damages because it would be difficult to calculate, on the date hereof, the amount of actual damages for such breach, and Seller and Purchaser agree that the Earnest Money represents a reasonable forecast of such damages. 8.3 Notice and Cure. In the event of a default by Seller or Purchaser fails to perform any of its obligations under this Agreement, the non-defaulting party shall provide the defaulting party with notice and five (5) ten (10) days to cure such default, prior to pursuing any remedies available with respect to such default; provided, however, that (i) no such notice and cure shall be provided with respect to a party's default in failing to timely close, or with respect to any party's anticipatory breach of this Agreement, and (ii) in no event shall any such notice and cure period result in an extension of the Closing Date or the Outside Completion Date. View More

Default. Subject to Section 8.3 below, in the event that Seller breaches any of its covenants, representations or warranties set forth in this Agreement, including failure by Seller shall fail to consummate this Agreement for any reason, except Purchaser's default or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof, Purchaser shall be entitled entitled, as its sole and exclusive remedy, at law or in equity, to either (i) terminate this Agreem...ent and receive a refund of the Earnest Money, and neither party shall have any further right or obligation hereunder other than the Surviving Obligations; or (ii) pursue the remedy of specific performance of Seller's obligations under this Agreement; provided, however, that in and notwithstanding anything to the event contrary, if the remedy of specific performance for any reason is not available, unavailable because Seller transfers title to the Property to a party other than the Purchaser, then Purchaser shall be entitled to recover damages from Seller as described have any remedies at law or in Section 8.1(ii) below, or (ii) terminate this Agreement, receive a refund of the Earnest Money, and pursue an action against Seller to recover any and all damages incurred directly or indirectly by Purchaser and/or any affiliates of Purchaser in connection with the transaction contemplated by this Agreement, including consequential damages, punitive damages and lost profits. equity. 8.2 Breach by Purchaser. Subject to Section 8.3 below, in the event that Purchaser breaches any of its covenants, representations or warranties set forth in this Agreement, including failure by Purchaser fails to consummate this Agreement for any reason, except Seller's default or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof, Seller, Seller shall be entitled, as its sole and exclusive remedy, may at law or equity, to terminate this Agreement and thereupon shall be entitled to receive the Earnest Money as liquidated damages (and not as a penalty). penalty), Seller waiving all other remedies at law or equity. Seller and Purchaser have made this provision for liquidated damages because it would be difficult to calculate, on the date hereof, the amount of actual damages for such breach, and Seller and Purchaser agree that the Earnest Money represents these sums represent a reasonable forecast of such damages. Nothing contained in this Section 8.2 shall be deemed to limit, modify or otherwise affect Purchaser's indemnification obligations set forth in Section 4.2 of this Agreement. 8.3 Notice and Cure. In the event Seller or Purchaser fails to perform any of its obligations under this Agreement, the non-defaulting party shall provide the defaulting party with notice and five (5) days to cure such default, prior to pursuing any remedies available with respect to such default; provided, however, that (i) no such notice and cure shall be provided with respect to a party's default in failing to timely close, or with respect to any party's anticipatory breach of this Agreement, and (ii) in no event shall any such notice and cure period result in an extension of the Closing Date. View More

Default. Subject to Section 8.3 below, in the event that Seller breaches any of its covenants, representations or warranties set forth in this Agreement, including failure by Seller to consummate this Agreement for any reason, except Purchaser's default or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof, Purchaser shall be entitled to either (i) pursue the remedy of specific performance of Seller's obligations under this Agreement; provided,... Agreement (provided, however, that (a) in the event specific performance for any reason is not available, available to Purchaser as a result of a willful act of Seller, then Purchaser shall be entitled to recover monetary damages from Seller as in addition to the remedy described in Section 8.1(ii) below, the immediately following subsection (ii) hereof, and (b) in the event specific performance is not available to Purchaser for any reason other than a willful act of Seller, then Purchaser shall be entitled to the remedy described in the immediately following subsection (ii) hereof without the right to recover additional monetary damages from Seller), or (ii) terminate this Agreement, receive a refund of the Earnest Money, and pursue an action against receive reimbursement from Seller to recover any and all damages for actual, documented out-of-pocket expenses incurred directly or indirectly by Purchaser and/or any affiliates of Purchaser in connection with the transaction contemplated by this Agreement, including consequential damages, punitive damages and lost profits. Agreement in an amount not to exceed $100,000. It is expressly agreed that a default by any party comprising Seller shall be deemed a default by all parties comprising Seller under this Agreement. 8.2 Breach by Purchaser. Subject to Section 8.3 below, in the event that Purchaser breaches any of its covenants, representations or warranties set forth in this Agreement, including failure by Purchaser to consummate this Agreement for any reason, except Seller's default or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof, Seller, as its sole and exclusive remedy, may terminate this Agreement and thereupon shall be entitled to receive the Earnest Money as liquidated damages (and not as a penalty). Seller and Purchaser have made this provision for liquidated damages because it would be difficult to calculate, on the date hereof, the amount of actual damages for such breach, and Seller and Purchaser agree that the Earnest Money represents a reasonable forecast of such damages. 8.3 Notice and Cure. In the event Seller or Purchaser fails to perform any of its obligations under this Agreement, the non-defaulting party shall provide the defaulting party with notice and five (5) days to cure such default, prior to pursuing any remedies available with respect to such default; provided, however, that (i) no such notice and cure shall be provided with respect to a party's default in failing to 16 DOCVARIABLE BABC_DocID timely close, or with respect to any party's anticipatory breach of this Agreement, and (ii) in no event shall any such notice and cure period result in an extension of the Closing Date. View More

Default. Subject to Section 8.3 below, in the event that Seller breaches any of its covenants, representations or warranties set forth in this Agreement, including failure by Seller to consummate this Agreement for any reason, except Purchaser's default or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof, Purchaser shall be entitled to either (i) pursue the remedy of specific performance of Seller's obligations under this Agreement; provided,... however, that in the event specific performance for any reason is not available, then Purchaser shall be entitled to recover damages from Seller as described in Section 8.1(ii) below, or (ii) terminate this Agreement, receive a refund of the Earnest Money, and pursue an action against Seller to recover any and all damages out of pocket expenses incurred directly or indirectly by Purchaser and/or any affiliates of Purchaser in connection with the transaction contemplated by this Agreement, including excluding consequential damages, punitive damages and lost profits. 8.2 Breach by Purchaser. Subject to Section 8.3 below, in the event that Purchaser breaches any of its covenants, representations or warranties set forth in this Agreement, including failure by Purchaser to consummate this Agreement for any reason, except Seller's default or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof, Seller, as its sole and exclusive remedy, may terminate this Agreement and thereupon shall be entitled to receive the Earnest Money as liquidated damages (and not as a penalty). Seller and Purchaser have made this provision for liquidated damages because it would be difficult to calculate, on the date hereof, the amount of actual damages for such breach, and Seller and Purchaser agree that the Earnest Money represents a reasonable forecast of such damages. 8.3 Notice and Cure. In the event Seller or Purchaser fails to perform any of its obligations under this Agreement, the non-defaulting party shall provide the defaulting party with notice and five (5) days to cure such default, prior to pursuing any remedies available with respect to such default; default, and the Closing Date will be extended as necessary to allow such cure; provided, however, that (i) no such notice and cure shall be provided with respect to if a party's default in failing party fails to timely close, or with respect close. 1.4Liability Cap. Notwithstanding anything contained in this Agreement to any party's anticipatory breach of the contrary, Seller's liability for monetary damages under this Agreement, and (ii) in no event shall any such notice and cure period result in an extension Agreement will not exceed one percent (1%) of the Closing Date. Purchase Price in the aggregate (the "Liability Cap"). Purchaser hereby waives any and all claims it may have to damages in excess of the Liability Cap. Purchaser's rights and obligations under this Section will survive Closing. View More