Default by Seller. Except as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in the event of default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Price.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Acadia Realty Trust)
Default by Seller. Except as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in the event of default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% sale of the Purchase PriceProperty as contemplated hereunder is not consummated due to Seller's default hereunder, Seller must cure said Seller Default. Seller then Purchaser shall have a period of thirty be entitled, as its sole remedy for such default, either (30a) days after receipt of written notice from Buyer to Seller receive the return of the Seller Default Exxxxxx Money and reimbursement of the amount of all direct third party out-of-pocket costs and expenses actually incurred, and documented by paid invoices and evidence of payment, by Purchaser in connection with this Agreement, including reasonable attorneys' fees, and the inspection, acquisition and financing of the Property, including, without limitation, any forfeited good faith and/or rate lock deposits, which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer return and reimbursement shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) operate to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including release Seller from any and all interest thereon), in which event both parties shall be released of all further liability hereunder, except for (b) waive the default by Seller and close the purchase notwithstanding the default by Seller, or (c) to enforce specific performance of Seller's obligation to execute and deliver the documents and perform its obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or as contained hereunder; provided, however, in the event specific performance is unavailable as a remedy to Purchaser because of Seller's intentional acts (such as conveying the Seller Default is of Property to a nature that it cannot be cured, Buyer may elect either (i) third party prior to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereonClosing), in which event both parties then Purchaser shall be released of all further liability hereunder, except entitled to bring an action against Seller for its actual damages (i.e. for the obligations hereunder which expressly survive benefit of Purchaser's bargain) .For purposes of clarity, if Seller sells the termination Property to a third party in breach of this Agreement or then specific performance would not be available as a remedy and the Purchaser's recoverable damages under sub-clause (iic) proceed above would be equal to Closing hereunder, with no abatement of, credit against or reduction in the purchase price Seller received minus the Purchase Price. Purchaser waives and releases any right to (and hereby covenants that it shall not) sxx Seller to recover any damages of any nature or description other than as set forth in this Section 6.2. This Section 6.2 is subject to Section 6.4 hereof.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Bluerock Residential Growth REIT, Inc.)
Default by Seller. Except If the sale of the Property to Purchaser is not consummated due to Seller’s default under this Agreement and Purchaser was ready, willing and able to close (provided, however, that Purchaser shall not be required to actually deposit its funds into Escrow), then Purchaser shall be entitled to elect one of the following as otherwise set forth in Section 5.3(cits sole and exclusive remedy: (a) which matters will be handled in accordance with the provisions set forth therein, in the event of default terminate this Agreement by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties (i) Escrow Agent or Seller, as applicable, shall be released return the Deposit to Purchaser, (ii) Seller shall reimburse Purchaser for all actual out-of-pocket costs and expenses incurred by Purchaser in connection with the transaction contemplated herein, capped at, and not to exceed, the sum of all Five Million Dollars ($5,000,000); and (iii) neither Purchaser nor Seller shall have any further liability hereunder, liabilities or obligations hereunder except for the obligations hereunder which expressly survive the termination of this Agreement. In ; (b) waive the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement condition and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or close the transaction without reduction in the Purchase Price, in which event Seller shall have no liability or obligation to Purchaser with respect to such condition; or (c) bring an action Seller for specific performance. As a condition precedent to Purchaser exercising any right it may have to bring an action for specific performance hereunder, Purchaser must commence such an action within sixty (60) days after the occurrence of Seller’s default. Purchaser agrees that its failure to timely commence such an action for specific performance within such sixty (60) day period shall be deemed a waiver by it of its right to commence an action for specific performance. Notwithstanding anything to the contrary hereinabove, if the remedy of specific performance is legally unavailable through no fault of Purchaser, then the amount of the cap on Purchaser’s recovery of actual out-of-pocket costs and expenses in accordance with clause (a)(ii), above. Except as expressly stated in this Section 12.2, Purchaser waives all further rights to any monetary recovery following a default by Seller, including without limitation, the right to receive actual compensatory, consequential, lost profit, punitive or other damages it may have on account of any default by Seller hereunder, or any equitable accounting coincident to any order of specific performance.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Washington Prime Group, L.P.)
Default by Seller. Except as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in In the event the Closing of the purchase and sale transaction provided for herein does not occur as herein provided, TIME BEING OF THE ESSENCE, by reason of any default by of Seller, Buyer shall provide Purchaser may, as Purchaser’s sole and exclusive remedies, elect by written notice to Seller within three (3) Business Days following the scheduled Closing Date, either (a) terminate this Agreement, whereupon (i) Purchaser will receive from the Title Company the Earnest Xxxxx Xeposit, (ii) if Seller’s default is intentional and material, Seller shall be obligated to reimburse Purchaser for its reasonable out of said default pocket costs incurred in connection with this Agreement or the Property (including but not limited to its legal fees and expenses in connection with the “Seller Default”). If negotiation of this Agreement, and its due diligence costs in regards to the Seller Default can be cured by Seller at Property) in an expense amount not to exceed 2% $150,000 in the aggregate, and (iii) Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; or (b) pursue specific performance of the Purchase Pricethis Agreement, Seller must cure said Seller Default. so long as any action or proceeding commenced by Purchaser against Seller shall have a period of be filed and served within thirty (30) days after receipt of written notice from Buyer the scheduled Closing Date; provided, however, if specific performance is not available then Purchaser shall be entitled to the remedies under the foregoing clause (a), and in either event, Purchaser hereby waives all other remedies, including any claim against Seller for damages of any type or kind including, without limitation, consequential or punitive damages. Failure of Purchaser to make the foregoing election within the foregoing three (3) Business Day period shall be deemed an election by Purchaser of the foregoing clause (a). Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in the event of a breach by Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend any of the Closing an additional thirty (30) day period (Surviving Obligations after Closing or the “Additional Extension”). IfTermination Surviving Obligations after termination, after subject to the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination terms of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Price.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Default by Seller. In the event the Closing and the transactions contemplated hereby do not occur as herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedy, elect by notice to Seller within 30 days following the Scheduled Closing Date, either of the following: (a) to terminate this Agreement, in which event Purchaser will receive from the Escrow Agent the Xxxxxxx Money Deposit, together with all interest accrued thereon, and Seller shall reimburse Purchaser or its Qualified Assignees for Purchaser’s Pursuit Costs incurred in connection in an amount not to exceed U.S. $2,500,000.00 upon receipt of substantiating documentation of such expenses reasonably satisfactory to Seller whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations, or (b) to seek to enforce specific performance of Seller’s obligations, and if Purchaser prevails on such specific performance action, Seller shall reimburse Purchaser for all reasonable attorneys’ fees, court costs and all other reasonable costs of such action. Except as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth thereinabove, Purchaser expressly waives its rights to seek damages in the event of Seller’s default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts Purchaser shall be deemed to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) elected to terminate this Agreement and receive reimbursement back the Xxxxxxx Money Deposit if Purchaser fails to file suit for specific performance against Seller in a court of competent jurisdiction on or before 90 days following the Scheduled Closing Date. Purchaser and Seller agree it would be impractical and extremely difficult to fix the damages that Purchaser may suffer if Closing fails to occur due to the default of Seller. Accordingly, Purchaser and Seller hereby agree that (x) payment to Purchaser of the Exxxxxx Money amount set forth above is a reasonable estimate of the total net detriment Purchaser would suffer if Seller defaults with respect to Closing, and (including all interest thereon)y) such amount will be the full, agreed and liquidated damages for Seller’s default and failure to complete the transaction, and will be Purchaser’s sole and exclusive remedy (whether at law or in equity) for any default of Seller resulting in the failure of consummation of Closing. The payment of any such amounts as liquidated damages is not intended as a forfeiture or penalty but is intended to constitute liquidated damages to Purchaser. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in which event both parties shall be released equity or as herein provided in pursuing remedies of all further liability hereunder, except for the obligations hereunder which expressly survive the termination a breach by Seller of this Agreement. In the event the cost to cure a Seller Default exceeds 2% any of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase PriceTermination Surviving Obligations.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (First Midwest Bancorp Inc)
Default by Seller. Except If the transaction is not consummated as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in the event a result of a default by Seller, Buyer then Buyer, as its sole and only remedies hereunder, to the exclusion of all other potential remedies under this Agreement, at law or in equity, may either (i) terminate this Agreement by delivery of notice of termination to Seller, whereupon (A) the Xxxxxxx Money plus interest accrued thereon shall provide written notice be immediately returned to Seller of said default Buyer, and (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. B) Seller shall pay to Buyer its Expense Reimbursement, in which case neither Party shall have a period any further rights or obligations hereunder other than those rights and obligations which expressly survive termination of this Agreement; or (ii) continue this Agreement pending Buyer’s action for specific performance, provided, however, that any such action for specific performance shall not include an action for damages and shall be filed and served by Buyer within thirty (30) days after receipt of written notice from the date which is the later of (x) the termination of this Agreement by Seller, or (y) the date on which Buyer has Actual Knowledge of the event or occurrence comprising the alleged default on the part of Seller, it being the intent of the Parties hereto that any failure of Buyer to Seller of meet the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties time deadline set for filing shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination deemed to be Buyer’s election to waive and relinquish any rights to enforce specific performance of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or Buyer files an action for specific performance in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or accordance with subparagraph (ii) proceed above and Seller prevails in such action, then in addition to Closing hereunderits obligations under Section 15(l) below, Buyer shall be obligated to pay to Seller an amount equal to the Specific Performance Amount as liquidated damages in order to compensate Seller for actual costs, damages and losses, as well as lost opportunity costs, suffered by Seller due to its inability to sell the Property to a third party pending the resolution of Buyer’s specific performance action. Buyer acknowledges that the damages suffered by Seller due to a delay in selling the Property are difficult to determine and that the Specific Performance Amount has been agreed upon, after negotiation, as the parties’ reasonable estimate of such Seller’s damages. In no event shall Seller be liable to Buyer in connection with any breach or default on the part of Seller under this Agreement for any incidental, special, exemplary, punitive or consequential damages, including, without limitation, loss of profits or revenue, interference with business operations, loss of tenants, lenders, investors, buyers, diminution in value of the Property, or inability to use the Property. Notwithstanding anything to the contrary herein, Buyer on its own behalf and on behalf of its agents, members, partners, employees, representatives, officers, directors, agents, related and affiliated entities, successors and assigns (collectively, the “Buyer Parties”) hereby agrees that in no abatement ofevent or circumstance shall any of the members, credit against partners, employees, representatives, officers, directors, agents, property management company, affiliated or reduction in related entities of Seller or Seller’s property management company (collectively, the Purchase Price.“Seller Parties”) have any personal liability under this Agreement. Buyer’s Initials
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Realty Trust, Inc.)
Default by Seller. Except If the transaction contemplated herein is not consummated because of a default on the part of Seller that is not cured within five (5) Business Days after written notice from Purchaser (or if such default does not consist of a willful action of Seller and cannot reasonably be cured within such 5 Business Day period, within such additional time, not to exceed an additional five (5) Business Days as otherwise set forth in Section 5.3(c) which matters will may be handled in accordance with reasonably necessary to cure the provisions set forth thereindefault), then Purchaser may elect, as its sole remedy, in the event of default Purchaser's sole and absolute discretion, by Seller, Buyer shall provide written notice to Seller to either: (a) terminate this Contract and receive the return of said the Xxxxxxx Money and a reimbursement from Seller of all Purchaser’s reasonable and documented out-of-pocket expenses actually incurred in connection with this Contract (collectively, "Purchaser’s Transaction Expenses") up to a maximum reimbursement of $250,000.00, in which event this Contract shall terminate, the Xxxxxxx Money shall be refunded to Purchaser by the Escrow Agent, and upon the receipt by Purchaser of the Xxxxxxx Money and Purchaser’s Transaction Expenses neither party shall have any further obligations under this Contract except under any provisions that survive the termination of this Contract by their express terms; (b) waive the default (and close on and take title to the “Seller Default”). If Property on the Seller Default can be cured by Seller at an expense not Closing Date subject to exceed 2% of such default without any reduction in the Purchase Price, ; or (c) seek specific performance of this Contract provided that written notice of Purchaser's intent to seek specific performance is delivered to Seller must cure said Seller Default. Seller shall have a period of within thirty (30) days after receipt of the date set forth in this Contract for the Closing and the specific performance action is actually filed within sixty (60) days after the date set forth in this Contract for the Closing. If written notice from Buyer of Purchaser's intent to seek specific performance is not delivered to Seller of the Seller Default in which to cure within such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect or if such written notice is given but a specific performance action is not filed prior to extend the Closing an additional thirty expiration of such sixty (3060) day period period, then Purchaser shall been conclusively deemed to have elected to obtain a return of the Xxxxxxx Money, payment of the Purchaser’s Transaction Expenses and to terminate this Contract as provided in (a) above. Purchaser waives and relinquishes the “Additional Extension”)right to any other remedy other than as specified in this Section 12.1. IfNotwithstanding the foregoing, after or any other provision in this Contract to the Additional Extensioncontrary, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed if the transaction contemplated herein is not consummated because of a default on the part of Seller that is not cured within five (5) Business Days after written notice from Purchaser, (ii) Purchaser seeks specific performance in full compliance with the foregoing provisions, and (iii) Seller voluntarily transfers and conveys the Property or any portion thereof to Closing hereunder another party that makes specific performance unavailable to Purchaser, Purchaser may bring an action for Purchaser’s damages resulting from such transfer that will be deemed to include the excess of consideration received by Seller in connection with no abatement of, credit against or reduction Seller’s transfer and conveyance of Property to a party other than Purchaser in excess of the Purchase Price or (ii) to terminate this Agreement and Purchaser will receive reimbursement a refund of the Exxxxxx Money (including all interest thereon)Xxxxxxx Money. The exercise by Purchaser of any of the remedies set forth in this Section 12.1 shall not limit or affect the liability of Seller under any indemnities contained in this Contract, in which event both parties shall be released any obligations of all further liability hereunder, except for the obligations hereunder which expressly Seller that survive the termination of this Agreement. In Contract by their express terms, or the event the cost right of either party to cure a Seller Default exceeds 2% of the Purchase Price or recover attorneys' fees, costs and expenses as provided in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase PriceSection 12.3 below.
Appears in 1 contract
Default by Seller. Except as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in In the event the Closing and the transactions contemplated hereby do not occur as herein provided by reason of any default by of Seller, Buyer shall provide written may, as Buyer’s sole and exclusive remedy under this Agreement, at law and in equity, elect by notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of within thirty (30) days after receipt following the Scheduled Closing Date, either of written notice the following: (a) to terminate this Agreement, in which event Buyer will receive from the Escrow Agent the Xxxxxxx Money, together with all interest accrued thereon, and Seller shall reimburse Buyer for all application costs paid to the Lender in connection with the Financing Consents, whereupon Seller and Buyer will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations, or (b) to seek to enforce specific performance of Seller’s obligation to execute the documents required to convey the Property to Buyer as contemplated herein, it being understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder. Notwithstanding anything contained herein to the contrary, if Seller shall have intentionally taken an action which precludes the ability of Buyer to Seller maintain an action for specific performance, then, in addition to receiving a return of the Seller Default in which Xxxxxxx Money pursuant to cure such Seller Default. As soon as the Seller Default has been cured by the Sellerclause (a) above, Buyer shall proceed be entitled to Closing seek damages for Seller’s default, which damages shall not to exceed Four Million and No/100 Dollars ($4,000,000.00). Except as set forth above, Buyer expressly waives its rights to seek damages in the event of Seller’s default hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall be deemed to have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) elected to terminate this Agreement and receive reimbursement of back the Exxxxxx Xxxxxxx Money if Buyer fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located on or before thirty (including all interest thereon)30) Business Days following the Scheduled Closing Date. Notwithstanding the foregoing, nothing contained herein (other than Section 8.4 hereof) will limit Buyer’s remedies at law, in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price equity or as herein provided in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement breach by Seller of any of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released Termination Surviving Obligations. Agreement of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Price.Sale and Purchase
Appears in 1 contract
Samples: Purchase and Sale Agreement (Prime Group Realty Trust)
Default by Seller. Except In the event the Closing and the transactions contemplated hereby do not occur as otherwise set forth herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedy, elect by notice to Seller within ten (10) Business Days following the Scheduled Closing Date, any of the following: (a) terminate this Agreement, in Section 5.3(cwhich event Seller will reimburse Purchaser’s actual, reasonable out-of-pocket transaction costs up to $75,000.00 and Purchaser will receive from the Escrow Agent the Xxxxxxx Money Deposit, together with all interest accrued thereon, whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; or (b) which matters will be handled seek to enforce specific performance of Seller’s obligation to convey the Property to Purchaser in accordance with the provisions set forth thereinterms and conditions of this Agreement (it being understood and agreed that the remedy of specific performance shall not be available to enforce other obligations of Seller hereunder); or (c) to proceed to Closing in accordance with the terms and conditions of this Agreement. Notwithstanding the forgoing, if Purchaser elects to terminate this Agreement pursuant to clause (a) above, or is deemed to have so terminated this Agreement, on account of Seller voluntarily having transferred title to the Real Property to a third party in willful violation of this Agreement and thereby rendering specific performance unobtainable, then Purchaser shall have the right to seek, in addition to the $75,000.00 of out-of-pocket transaction costs, any actual direct damages (which, for the avoidance of doubt, shall include the amount by which the sales price to such third party exceeds the Purchase Price hereunder, but shall exclude consequential damages) to which Purchaser is entitled at law, provided that the aggregate amount of such transaction costs and damages shall not exceed an amount equal to the Xxxxxxx Money Deposit. Purchaser expressly waives its rights to seek damages in the event of default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Defaultdefault hereunder, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction except as expressly set forth in the Purchase Price or (ii) preceding sentence. Purchaser shall be deemed to have elected to terminate this Agreement pursuant to clause (a) above if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and receive reimbursement state in which the Property is located on or before sixty (60) days following the Scheduled Closing Date. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser's remedies at law, in equity or as herein provided in pursuing remedies for a breach by Seller of any of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price Termination Surviving Obligations or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase PriceSurviving Obligations.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Griffin Capital Essential Asset REIT II, Inc.)
Default by Seller. Except In the event the sale of the Property as otherwise set forth in Section 5.3(ccontemplated hereunder is not consummated due to Seller’s default hereunder, Buyer shall be entitled, as its sole remedy, either (a) which matters will be handled to receive the return of the Deposit plus all interest earned thereon, or (b) to enforce specific performance of Seller’s obligation to convey the Property to Buyer in accordance with the provisions set forth thereinterms of this Agreement, it being understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder. In the event the sale of the Property as contemplated hereunder is not consummated due to Seller’s default hereunder, and Buyer elects clause (a) above as its remedy, subject to a cap of $150,000, Seller shall reimburse Buyer within ten (10) days of the cancellation of this Agreement all of Buyer’s reasonable and actual out of pocket costs and expenses incurred by Buyer in connection with this Agreement, including title, survey and escrow cancellation charges (“Costs”). Buyer expressly waives its rights to seek damages in the event of Seller’s default by Seller, hereunder except as expressly provided herein. Buyer shall provide written notice be deemed to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) elected to terminate this Agreement and receive reimbursement back the Deposit (plus interest, and be reimburse its Costs) if Buyer fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Real Property is located, on or before ninety (90) days following the date upon which Close of Escrow was to have occurred. Buyer waives any right to pursue any other remedy at law or equity for such default of Seller, including, without limitation, any right to seek, claim or obtain damages (other than for the Costs), punitive damages or consequential damages. In no case shall Seller ever be liable to Buyer under any statutory, common law, equitable or other theory of law, either prior to or following the Closing, for any lost rents, profits, “benefit of the Exxxxxx Money (including all interest thereon)bargain,” business opportunities or any form of consequential damage in connection with any claim, liability, demand or cause of action in which event both parties shall be released any way or manner relating to the Property, the condition of all further liability hereunderthe Property, except for the obligations hereunder which expressly survive the termination of this Agreement. In , or any transaction or matter between the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability contemplated hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Price.
Appears in 1 contract
Default by Seller. Except as otherwise set forth in Section 5.3(cIn the event that Seller (i) which matters will be handled in accordance with the provisions set forth therein, defaults in the event performance of any of Seller’s obligations under this Agreement, which default remains uncured for five (5) Business Days after written notice thereof to Seller; (ii) fails to consummate the transaction contemplated by this Agreement; (iii) fails to pay the sums required to be paid by Seller under this Agreement, or (iv) otherwise breaches this Agreement, Purchaser, as Purchaser’s sole and exclusive right and remedy prior to Closing, may either: (a) terminate this Agreement, or (b) pursue the remedy of specific performance of Seller’s obligations under this Agreement. The remedy of specific performance is only available to Purchaser if (i) any suit for specific performance is filed within ninety (90) days after Purchaser first becomes aware of the breach or default by Seller, Buyer and (ii) Purchaser is not then in material breach or default in the performance of any of its obligations under this Agreement. If Purchaser properly terminates this Agreement under clause (a), the Exxxxxx Money shall provide written notice be refunded to Purchaser by Escrow Agent, and if Seller fails to close in Bad Faith, Seller shall reimburse Purchaser for its reasonable out-of-pocket expenses incurred in connection with this transaction (including reasonable attorney’s fees, consultant costs, travel costs and similar expenses) up to but not exceeding $150,000.00 and thereafter neither party shall have any rights or obligations under this Agreement, other than Surviving Obligations. None of the provisions of this Section 7.1 shall limit, impair or affect Surviving Obligations. Notwithstanding anything to the contrary contained in this Agreement or in any exhibits attached hereto or in any documents executed or to be executed in connection herewith (collectively, the “Purchase Documents”), it is expressly agreed that: (1) the remedies of Purchaser or its successors or assigns against Seller with respect to the alleged breach by Seller of said default any representation, warranty, covenant, undertaking, indemnity or obligation contained in any of the Purchase Documents (collectively, “Seller’s Undertakings”) discovered by Purchaser following Closing shall (x) be deemed waived unless Purchaser has filed suit against Seller regarding the alleged breach within nine (9) months after the Closing Date; (y) be limited to an amount not to exceed $500,000.00 in the aggregate; and (z) may be asserted by Purchaser only if Purchaser’s damages in the aggregate exceed $50,000.00 (whereupon Seller’s liability shall be from the first dollar of such loss); (2) except with regard to the matters described in the Addendum attached hereto and made a part hereof (the “Seller DefaultAddendum”). If the Seller Default can ) no personal liability or personal responsibility of any sort with respect to any of Seller’s Undertakings or any alleged breach thereof is assumed by, or shall at any time be cured by Seller at an expense not to exceed 2% of the Purchase Priceasserted or enforceable against, Seller must cure said Seller Defaultor any of its shareholders, directors, officers, employees, agents, constituent partners, members, beneficiaries, trustees or representatives except as provided in (1) above with respect to Seller. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer Further, notwithstanding anything herein to Seller of the Seller Default in which to cure such Seller Default. As soon as contrary, the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite limit on Seller’s reasonable efforts liability shall not apply to cure said Seller DefaultSeller’s obligations under Sections 5.3.7, Seller cannot cure said Seller Default within 5.4 and 9.2. Notwithstanding anything to the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction contrary contained in the Purchase Price Documents, Purchaser agrees that Seller shall be liable only for any direct or (ii) actual damages, but not any consequential or punitive damages, suffered by Purchaser on account of any breach by Seller. If Purchaser becomes aware prior to terminate this Agreement the Closing that any representation or warranty hereunder is untrue, or any covenant or condition to Closing has not been fulfilled or satisfied, and receive reimbursement Purchaser nonetheless proceeds to close on the purchase of the Exxxxxx Money (including all interest thereon)Property, in which event both parties then Purchaser shall be deemed to have irrevocably and absolutely waived, relinquished and released all rights and claims against Seller for any damage or other loss arising out of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement resulting from such untrue representation or (ii) proceed to Closing hereunder, with no abatement of, credit against warranty or reduction in the Purchase Pricesuch unfulfilled or unsatisfied covenant or condition.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Hines Real Estate Investment Trust Inc)
Default by Seller. Except In the event the Closing and the transactions contemplated hereby do not occur as otherwise set forth herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedy, elect by notice to Seller within ten (10) Business Days following the Scheduled Closing Date, either of the following: (a) terminate this Agreement, in Section 5.3(cwhich event Purchaser will receive from the Escrow Agent the Xxxxxxx Money Deposit, together with all interest accrued thereon, and reimbursement from Seller of Purchaser’s reasonable out of pocket costs and expenses payable to third parties in connection with this transaction; provided, however, that the reimbursement by Seller to Purchaser under this Agreement shall not exceed One Hundred Eighty Thousand Thirty-Nine Dollars and no/100 Cents ($180,039.00) which matters and the aggregate reimbursement by Seller to Purchaser under this Agreement and the Other P&S Agreements shall not exceed Seven Hundred Fifty Thousand Dollars ($750,000.00) (the “Reimbursement Cap”); whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; or (b) seek to enforce specific performance of Seller’s obligation to execute the documents required to convey the Property to Purchaser, it being understood and agreed that the remedy of specific performance shall not be handled in accordance with the provisions set forth therein, available to enforce any other obligation of Seller hereunder. Purchaser expressly waives its rights to seek damages in the event of Seller’s default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts Purchaser shall be deemed to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) elected to terminate this Agreement and receive reimbursement back the Xxxxxxx Money Deposit if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located on or before thirty (30) days following the Scheduled Closing Date. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in pursuing remedies of a breach by Seller of any of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase PriceTermination Surviving Obligations.
Appears in 1 contract
Default by Seller. Except as otherwise set forth If Seller defaults in Section 5.3(c) which matters will its obligation to sell and convey the Property to Purchaser pursuant to this Contract, Purchaser’s sole remedy shall be handled in accordance with the provisions set forth therein, in the event of default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% elect one of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty following: (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (iia) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon)Contract, in which event both parties Purchaser shall be released entitled to the return by the Title Company to Purchaser of the Xxxxxxx Money, or (b) if Closing does not occur solely on account of a Willful Seller Default, to bring a suit for specific performance, provided that any suit for specific performance must be brought within ninety (90) days of Seller’s default. In no event shall Seller be liable to Purchaser for any actual, punitive, speculative, consequential or other damages, all further liability hereunderof which are hereby waived by Purchaser. For the purposes hereof, a “Willful Seller Default” shall mean a default by Seller on or after the date hereof whereby Seller intentionally and in bad faith acts with the sole purpose of frustrating the intent of this Contract. Notwithstanding the foregoing, if Purchaser’s remedy of specific performance is not available to Purchaser because of Seller conveying the Property to a third party in breach of its obligations under this Contract, then to the extent the Purchaser is the prevailing party in such action for specific performance (or would have been the prevailing party in such action except for Seller’s actions which make specific performance not available), the obligations hereunder which expressly survive Purchaser shall receive the termination return of the Xxxxxxx Money and in addition the Purchaser shall receive from Seller as agreed upon liquidated damages and as its sole remedy and relief (i) Purchaser’s actual documented out-of-pocket expenses paid to third parties by Purchaser in connection with this AgreementContract, and (ii) an amount equal to the Net Additional Consideration received by Seller for the wrongful sale of the Property to such third party. In The term “Net Additional Consideration” shall mean the event difference between (a) the cost net proceeds actually received by Seller for the sale of the Property to cure a Seller Default exceeds 2% of third party prior to the Closing Date and (b) the Purchase Price hereunder. Purchaser hereby waives any other rights or remedies in respect of any such default. This Contract confers no present right, title or interest in the event Property to Purchaser and Purchaser agrees not to file a lis pendens or other similar notice against the Seller Default is Property except in connection with, and after, the filing of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except suit for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Pricespecific performance.
Appears in 1 contract
Samples: Real Estate Sale Contract (Carter Validus Mission Critical REIT, Inc.)
Default by Seller. Except If Seller is unable to give title to the Property such as otherwise set forth in Section 5.3(c) which matters will be handled insured by a reputable title insurance company as provided in accordance Paragraph 5 hereof, then Purchaser shall have the option of (a) taking such title as Seller can give with the provisions set forth therein, in the event of default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% appropriate abatement of the Purchase Price, Seller must cure said Seller Default. Price as determined as follows: Purchaser shall select an appraiser (the "Purchaser's Appraiser") and Seller shall have select an appraiser (the "Seller's Appraiser"). Within five (5) days after the appointment of the two appraisers, the Purchaser's Appraiser and the Seller's Appraiser shall select a period third appraiser (the "Third Appraiser"). Each of the appraisers shall submit to Purchaser and Seller a determination of the abatement within thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which date of selecting the Third Appraiser. The determinations of the two appraisers submitted to cure such Seller Default. As soon as the Purchaser and the Seller Default has been cured by which are closest in value shall be averaged, provided that if the appraisals are equidistant, all three appraisals shall be averaged. Such average will, absent fraudulent collusion, constitute the amount of the abatement and shall be final and binding upon the Purchaser and the Seller, Buyer free of challenge or review in any court. All costs associated with such appraisal process shall proceed to Closing hereunder. Ifbe borne fifty percent (50%) by the Purchaser and fifty percent (50%) by Queen Carpet Corporation, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (iib) to terminate this Agreement Agreement; and receive reimbursement in the latter event, there shall be no further liability or obligation by either of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate and this Agreement shall become null and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Pricevoid.
Appears in 1 contract
Default by Seller. Except as otherwise set forth If Seller is in Section 5.3(cdefault of any of its obligations hereunder and such default continues for five (5) which matters will be handled in accordance with the provisions set forth therein, in the event of default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) business days after receipt of written notice from Buyer to Seller of the Seller Default in which (other than a failure to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to consummate a Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend on the Closing an additional thirty (30) day period (the “Additional Extension”Date, which shall not be subject to a notice and cure period). If, after the Additional Extensionwhich written notice shall detail such default, Seller cannot cure said Seller Default, then Buyer shall have the option to elect to right, as its sole and exclusive remedy (except as hereinafter otherwise provided), either: (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) to terminate this Agreement and receive reimbursement of the Exxxxxx Money Deposit (including all interest thereonplus the Initial Payment), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost ; or (ii) to cure a Seller Default exceeds 2% file, within sixty (60) days of the Purchase Price Closing Date, an action for specific performance of Seller's express obligations hereunder, without abatement of, credit against, or reduction in the event Purchase Price. Notwithstanding the Seller Default is of a nature that it cannot be curedforegoing, Buyer may elect either (i) and Seller agree that nothing contained herein shall limit Buyer's right to terminate this Agreement seek and receive reimbursement of the Exxxxxx Money (including all interest thereon), obtain damages from Seller due to Seller defaulting in which event both parties shall be released of all further liability hereunder, except for the its obligations hereunder which expressly survive the termination of this Agreement Agreement, or (iiiii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Price.event of an Intentional Default (as hereinafter defined) by Seller which render’s Buyer’s remedy for specific performance unavailable, Buyer shall have the right to terminate this Agreement, receive reimbursement of the Deposit (plus the Initial Payment), and payment by Seller of Buyer’s Transaction Costs (as hereinafter defined). For purposes of this Section 11.2, Buyer’s Transaction Costs shall mean any costs and expenses actually paid or incurred by Buyer to third-parties (except as expressly provided herein) as of the date of such termination of this Agreement by Buyer pursuant to this Section 11.2, including attorney fees (including in-house attorneys of Buyer or its affiliates at a rate of $300/hour), third parties’ fees and actual, out-of-pocket expenses (such as travel costs) in connection with the performance of LEGAL02/34919558v5
Appears in 1 contract
Samples: Purchase and Sale Agreement (Steadfast Apartment REIT, Inc.)
Default by Seller. Except as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in In the event of material default by SellerSellers, Buyer, as Buyer's sole and exclusive remedy, may, provided Buyer shall provide has given Sellers written notice to Seller of said such default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which and Sellers’ failure to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed default within five (5) business days following such notice being given (other than a failure to consummate a Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend on the Closing an additional thirty (30) day period (the “Additional Extension”Date, which shall not be subject to a notice and cure period). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to either: (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) to terminate this Agreement and receive reimbursement of the Exxxxxx Xxxxxxx Money (including all interest thereon) and payment by Seller of Buyer’s Transaction Costs (as hereinafter defined), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost ; or (ii) to cure a Seller Default exceeds 2% file, within sixty (60) days of the Purchase Price Closing Date, an action for specific performance of Seller's express obligations hereunder, without abatement of, credit against, or reduction in the event Purchase Price. Notwithstanding the Seller Default is of a nature that it cannot be curedforegoing, Buyer may elect either (i) and Sellers agree that nothing contained herein shall limit Buyer's right to terminate this Agreement seek and receive reimbursement of the Exxxxxx Money (including all interest thereon), obtain damages from Sellers due to Sellers defaulting in which event both parties shall be released of all further liability hereunder, except for the its obligations hereunder which expressly survive the termination of this Agreement. For purposes of this Section 13.2, Buyer’s Transaction Costs shall mean any costs and expenses actually paid or incurred by Buyer to third-parties (except as expressly provided herein) as of the date of such termination of this Agreement by Buyer pursuant to this Section 13.2, including attorney fees (including in-house attorneys of Buyer or its affiliates at a rate of $300/hour), third parties’ fees and actual, out-of-pocket expenses (such as travel costs) in connection with the performance of examinations, inspections and/or investigations of the Property and to any potential lender in connection with any proposed financing of the Property (all as substantiated by written invoices therefor), in an amount not to exceed (x) $75,000.00 per Property if Seller’s material default occurs at any time between the date of this Agreement and the date on which Buyer gives Seller written notice that Buyer has paid a rate lock deposit or spread lock deposit (which deposit shall not be made by Buyer more than three (3) business days prior to the Closing Date) to any lender providing financing to Buyer in connection with the purchase of the Property (the “Rate Lock Notice”) or (iiy) proceed $75,000.00 per Property PLUS the Rate Lock Deposit (as hereinafter defined), if the Seller’s material default occurs at any time following the date on which Buyer has properly given Seller the Rate Lock Notice and is an Intentional Default. As used herein, “Rate Lock Deposit” shall mean an amount equal to (but not to exceed) 2% of the loan amount attributable to the applicable Property (which shall not exceed 72% of the applicable Purchase Price of such Property) if actually paid by or on behalf of Buyer to a lender and not refundable by such lender. As used herein, “Intentional Default” shall mean any default by Seller under this Agreement which arises from one or more of the following: (a) Seller’s fraud, (b) Seller’s criminal conduct (i.e. conduct that constitutes a felony under applicable law), (c) intentional or grossly negligent breach by Seller of any of its obligations under this Agreement, or (d) a representation or warranty made by Seller if Seller had actual knowledge that such representation or warranty was untrue when made, provided however that changes in factual matters between the Effective Date and the 41 Closing hereunderDate which render Seller unable to remake such representation or warranty on the Closing Date shall not constitute an Intentional Seller Default. In the event that Buyer elects specific performance hereunder but such remedy is unavailable due to an Intentional Default by Seller, with no abatement ofthen Buyer shall have the rights to terminate and recover its Transaction Costs as provided in subsection (i) of this Section 13.2, credit against or reduction in the Purchase Pricewhich right shall be automatically reinstated. Seller’s reimbursement obligations under this Section 13.2 shall survive any termination of this Agreement by Buyer under this Section 13.2.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Steadfast Income REIT, Inc.)
Default by Seller. Except In the event the Closing and the transactions contemplated hereby do not occur as otherwise set forth herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedy, elect by notice to Seller within ten (10) Business Days following the Scheduled Closing Date, either of the following: (a) terminate this Agreement, in Section 5.3(cwhich event Purchaser will receive from the Escrow Agent the Xxxxxxx Money Deposit, together with all interest accrued thereon, and reimbursement from Seller of Purchaser’s reasonable out of pocket costs and expenses payable to third parties in connection with this transaction; provided, however, that the reimbursement by Seller to Purchaser under this Agreement shall not exceed Fifty-four Thousand Thirteen Dollars ($54,013) which matters and the aggregate reimbursement by Seller to Purchaser under this Agreement and the Other P&S Agreements shall not exceed Seven Hundred Fifty Thousand Dollars ($750,000) (the “Reimbursement Cap”); whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; or (b) seek to enforce specific performance of Seller’s obligation to execute the documents required to convey the Property to Purchaser, it being understood and agreed that the remedy of specific performance shall not be handled in accordance with the provisions set forth therein, available to enforce any other obligation of Seller hereunder. Purchaser expressly waives its rights to seek damages in the event of Seller’s default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts Purchaser shall be deemed to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) elected to terminate this Agreement and receive reimbursement back the Xxxxxxx Money Deposit if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located on or before thirty (30) days following the Scheduled Closing Date. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in pursuing remedies of a breach by Seller of any of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase PriceTermination Surviving Obligations.
Appears in 1 contract
Default by Seller. Except In the event the Closing and the transactions contemplated hereby do not occur as otherwise set forth herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedy, elect by written notice to Seller within fifteen (15) Business Days following the Scheduled Closing Date, either of the following: (a) terminate this Agreement, in Section 5.3(cwhich event Purchaser will receive from the Escrow Agent the Xxxxxxx Money Deposit together with all interest accrued thereon and Seller pay to Purchaser an amount equal to its reasonable out-of-pocket expenses incurred by Purchaser such amount not to exceed Five Hundred Thousand Dollars ($500,000.00), whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; or (b) which matters will be handled in accordance with seek to enforce specific performance of Seller’s obligations hereunder. Notwithstanding the provisions set forth thereinforegoing, in the event the Closing and the transactions contemplated hereby do not occur as herein provided by reason of any willful material default of Seller, Purchaser and Seller agree that Purchaser may, as Purchaser’s sole and exclusive remedy, elect by written notice to Seller within thirty (30) Business Days following the Scheduled Closing Date, either of the following: (a) terminate this Agreement, in which event Purchaser will receive from the Escrow Agent the Xxxxxxx Money Deposit together with all interest accrued thereon and Seller shall pay to Purchaser an amount equal to Five Hundred Thousand Dollars ($500,000.00) as the full, agreed and liquidated damages for Seller’s default and failure to complete the sale of the Property, whereupon this Agreement will terminate and Seller and Purchaser will have no further rights or obligations hereunder, except with respect to the Termination Surviving Obligations; or (b) seek to enforce specific performance of Seller’s obligations hereunder. Except as provided in this Section with regard to out-of-pocket expenses and the liquidated damages in the event of a willful material default by Seller, Buyer shall provide written notice Purchaser expressly waives its rights to Seller seek damages in the event of said Seller’s default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts Purchaser shall be deemed to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) elected to terminate this Agreement and receive reimbursement of back the Exxxxxx Xxxxxxx Money (including all interest thereon), Deposit if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Property is located or provide Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is with notice of a nature that it cannot be curedwillful material default, Buyer may elect either on or before ninety (i90) to terminate this Agreement and receive reimbursement of days following the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Scheduled Closing hereunder, with no abatement of, credit against or reduction in the Purchase PriceDate.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty Corp)
Default by Seller. Except as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in In the event that Seller fails to consummate this Agreement for any reason other than Purchaser’s default or the permitted termination of default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured this Agreement by Seller at an expense not to exceed 2% of the Purchase Priceor Purchaser as herein expressly provided, Seller must cure said Seller Default. Seller Purchaser shall have a period of thirty be entitled, as its sole remedy, either (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (iia) to terminate this Agreement and receive reimbursement the return of the Exxxxxx Xxxxxxx Money and reimbursement by Seller of Purchaser’s reasonable, out-of-pocket, third-party costs and expenses actually incurred by Purchaser in connection with its attempt to acquire the Property in an amount not to exceed $600,000 (including all interest thereonprovided Purchaser provides documentation reasonably satisfactory to Seller evidencing the nature and amount of such expenses), in which event both parties Seller shall be released of from any and all further other liability hereunder, except for the or (b) to enforce specific performance of Seller’s obligations hereunder which hereunder. Purchaser expressly survive the termination of this Agreement. In the event the cost waives its rights to cure a Seller Default exceeds 2% of the Purchase Price or seek damages in the event the Seller Default is of a nature that it cannot Seller’s default hereunder. Purchaser shall be cured, Buyer may elect either (i) deemed to have elected to terminate this Agreement and receive reimbursement back the Xxxxxxx Money if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located, on or before thirty (30) days following the date upon which Closing was to have occurred. As material consideration to Seller’s entering into this Agreement with Purchaser, Purchaser expressly waives any right under statutory or common law or otherwise to record or file a lis pendens or a notice of pendency of action or similar notice against all of any portion of the Exxxxxx Money Property unless (including i) all interest thereon)conditions precedent to Seller’s obligation to proceed to Closing have been satisfied and (ii) Seller defaults in its obligation to proceed to Closing. Nothing contained in this Section 6.2 shall limit or prevent Purchaser after Closing has occurred from (a) asserting any legal or equitable claims against Seller for Seller’s obligation to pay attorneys’ fees and other amounts under Section 10.17, in which event both parties shall be released or (b) enforcing any indemnity obligation of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of Seller under this Agreement or preclude Purchaser from obtaining a damage award in connection therewith, or (iic) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Priceenforcing Seller’s other obligations and liabilities which survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (LaSalle Hotel Properties)
Default by Seller. Except as otherwise set forth If Seller defaults under this Agreement at or prior to Closing in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in the event of default by Sellerany material respect, Buyer shall provide written notice be entitled, as its sole remedy, either (a) to Seller of said default (receive the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% return of the Purchase PriceXxxxxxx Money, Seller must cure said Seller Default. whereupon Seller shall have a period reimburse Buyer for all out-of-pocket costs and expenses incurred by Buyer in connection with this Agreement, which return and reimbursement shall operate to terminate this Agreement and release Seller from any and all liability hereunder other than those obligations which expressly survive termination hereunder, or (b) to enforce specific performance of thirty (30) days after receipt Seller’s obligation to execute and deliver the documents required to convey the Property to Buyer, it being understood and agreed that the remedy of written notice from Buyer specific performance shall not be available to enforce any other obligation of Seller of the Seller Default in which to cure such Seller Defaulthereunder. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed be deemed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) elected to terminate this Agreement and receive back the Xxxxxxx Money and reimbursement for Buyer’s out-of-pocket costs and expenses if Buyer fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located, on or before the date which is thirty (30) days following the date upon which Closing was to have occurred. As material consideration to Seller’s entering into this Agreement with Buyer, Buyer expressly waives any right under statutory or common law or otherwise to record or file a lis pendens or a notice of pendency of action or similar notice against all or any portion of the Exxxxxx Money Property unless (including i) all interest thereon)conditions precedent to Seller’s obligation to proceed to Closing have been satisfied (other than payment of the Purchase Price) and Seller defaults in its obligation to proceed to Closing, and (ii) Buyer timely files an action for specific performance in which event both parties accordance with this Section 6.2. Any attempt by Buyer to file a lis pendens or notice of pendency in violation of this Section 6.2 shall be released null and void ab initio. Buyer shall indemnify, defend and hold Seller harmless from and against all claims, liabilities, costs and expenses (including, without limitation, court costs and reasonable attorneys’ fees) arising out of all further liability hereunder, except for the obligations hereunder which expressly Buyer’s filing (or attempted filing) of a lis pendens or notice of pendency in breach of this Section 6.2. The provisions of this Section 6.2 shall survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Price.
Appears in 1 contract
Default by Seller. Except as otherwise set forth If Seller defaults in Section 5.3(cits obligation to sell and convey the Property to Purchaser pursuant to this Contract, Purchaser’s sole remedy shall be to elect one of the following: (a) to terminate this Contract, in which matters will event Purchaser shall be handled entitled to the return by the Title Company to Purchaser of the Xxxxxxx Money, or (b) if Closing does not occur solely on account of a Willful Seller Default, to bring a suit for specific performance, provided that any suit for specific performance must be brought within ninety (90) days of Seller’s default. In no event shall Seller be liable to Purchaser for any actual, punitive, speculative, consequential or other damages, all of which are hereby waived by Purchaser. For the purposes hereof, a “Willful Seller Default” shall mean a default by Seller on or after the date hereof whereby Seller intentionally and in accordance bad faith acts with the provisions set forth thereinsole purpose of frustrating the intent of this Contract. Notwithstanding the foregoing, if Purchaser’s remedy of specific performance is not available to Purchaser because of Seller conveying the Property to a third party in breach of its obligations under this Contract, then to the extent the Purchaser is the prevailing party in such action for specific performance (or would have been the prevailing party in such action except for Seller’s actions which make specific performance not available), the Purchaser shall receive the return of the Xxxxxxx Money and in addition the Purchaser shall receive from Seller as agreed upon liquidated damages and as its sole remedy and relief (i) Purchaser’s actual documented out-of-pocket expenses paid to third parties by Purchaser in connection with this Contract, and (ii) an amount equal to the Net Additional Consideration received by Seller for the wrongful sale of the Property to such third party. The term “Net Additional Consideration” shall mean the difference between (a) the net proceeds actually received by Seller for the sale of the Property to a third party prior to the Closing Date and (b) the Purchase Price hereunder. Purchaser hereby waives any other rights or remedies in respect of any such default. This Contract confers no present right, title or interest in the Property to Purchaser and Purchaser agrees not to file a lis pendens or other similar notice against the Property except in connection with, and after, the filing of a suit for specific performance. The parties have agreed that Purchaser’s damages, in the event of a default by Seller, Buyer shall provide written notice would be extremely difficult or impracticable to Seller determine and that the amount of said default (the “Seller Default”)liquidated damages herein represents a reasonable estimate of Purchaser’s damages. If the Seller Default can be cured by Seller at an expense not to exceed 2% The payment of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default amounts in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or and (ii) above as liquidated damages as provided herein is not intended to terminate this Agreement be a forfeiture or penalty, but is intended to constitute liquidated damages to Seller pursuant to California Civil Code Section 1671, 1676 and receive reimbursement 1677. Therefore, by placing their initials below, the parties acknowledge that the remedies above have been agreed upon, after negotiation, as the parties’ reasonable estimate of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this AgreementPurchaser’s damages. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Price.Seller: Purchaser:
Appears in 1 contract
Samples: Real Estate Sale Contract (Carter Validus Mission Critical REIT, Inc.)
Default by Seller. Except If Closing of the purchase and sale transaction provided for herein does not occur as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in the event herein provided by reason of any default by of Seller, Buyer shall provide Purchaser may, as Purchaser’s sole and exclusive remedies under this Agreement, (a) elect by written notice to Seller of said default and the Title Company to extend the Closing for up to five (5) Business Days to allow Seller to cure such default; and (b) either (i) elect by written notice to Seller within ten (10) Business Days following the “Seller Default”). If scheduled or extended Closing Date to terminate this Agreement, in which event Purchaser will receive from the Seller Default can be cured by Seller at an expense not to exceed 2% of Title Company the Purchase Price, Seller must cure said Seller Default. Xxxxxxx Money Deposit and Seller shall reimburse Purchaser up to a maximum of $100,000 for Seller’s actual third party costs in connection with the transaction contemplated by this Agreement, whereupon Seller and Purchaser will have a period no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations, or (ii) elect to pursue specific performance of this Agreement so long as such action by Purchaser against Seller shall be filed and served within thirty (30) days after receipt the scheduled Closing Date. In any event, Purchaser hereby waives all other remedies under this Agreement, including without limitation, any claim against Seller for damages of written notice from Buyer any type or kind, including without limitation, consequential or punitive damages. Unless otherwise expressly required pursuant to this Agreement, in no event shall Seller be obligated to undertake any of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to following under this Agreement (i) proceed to Closing hereunder with no abatement of, credit against change the condition of the Property or reduction in restore the Purchase Price same after any fire or casualty; (ii) expend money or post a bond to terminate this Agreement and receive reimbursement remove or insure over anything other than a Must-Cure Matter or to correct any matter shown on a survey of the Exxxxxx Money Property; (including all interest thereon)iii) secure any permit, approval, or consent with respect to the Property or Seller’s conveyance thereof; or (iv) expend any money to repair, improve or alter the Improvements or any portion thereof. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in which equity or as herein provided in the event both parties shall be released of all further liability hereundera breach by Seller of any of the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after termination, except for subject to the obligations hereunder which expressly survive the termination terms and provisions of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Price.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Hines Global REIT, Inc.)
Default by Seller. Except In the event that Seller fails to perform any of the material covenants or agreements contained herein which are to be performed by Seller and Seller does not cure such failure by the earlier of (a) September 29, 2017 or (b) within five (5) business days of receipt of written notice thereof from Buyer, Buyer may, at its option and as otherwise set forth in Section 5.3(cits exclusive remedy, either (i) which matters terminate this Agreement by giving written notice of termination to Seller whereupon Escrow Holder will be handled in accordance with return to Buyer the provisions set forth thereinDeposit, in the which event of default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. y) Seller shall have a period of reimburse Buyer for its actual out-of-pocket third-party costs incurred in connection with this Agreement and the transactions contemplated hereby within thirty (30) days after Seller’s receipt of written notice from Buyer to Seller of the Seller Default invoices or receipts (provided that in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer no event shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts reimbursement obligation pursuant to cure said this Section 16.1 exceed Three Hundred Thousand and No/100 Dollars ($300,000.00)), and (z) both Buyer and Seller Defaultwill otherwise be relieved of any further obligations or liabilities hereunder, Seller cannot cure said Seller Default within the thirty (30) day periodexcept for those obligations which expressly survive any termination hereof, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) Buyer may seek specific performance of this Agreement. Buyer shall be deemed to have elected to terminate this Agreement pursuant to clause (i) above if Buyer fails to file suit for specific performance against Seller in a court having jurisdiction in the county and receive reimbursement of the Exxxxxx Money (including all interest thereon), state in which event both parties shall be released of all further liability hereunderthe Property is located, except for on or before sixty (60) days following the obligations hereunder date upon which expressly survive the termination of this AgreementClosing was to have occurred. In Notwithstanding the event foregoing to the cost to cure a Seller Default exceeds 2% of the Purchase Price or contrary, in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), remedy set forth in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or subpart (ii) proceed above is unavailable (or so impractical as to Closing hereunderbe deemed unavailable) as a result of the willful act or acts of Seller taken with the intent to frustrate such remedy, then Buyer shall be entitled to pursue all its rights and remedies at law and in equity with no abatement ofrespect to such Seller default. Except as specifically set forth in this Section 16.1, credit against Buyer does hereby specifically waive any right to pursue any other remedy at law or reduction in the Purchase Priceequity for such default of Seller, including, without limitation, any right to seek, claim or obtain damages, punitive damages or consequential damages.
Appears in 1 contract
Default by Seller. Except In the event the Closing and the transactions contemplated hereby do not occur as otherwise set forth herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedy, elect by notice to Seller within ten (10) Business Days following the Scheduled Closing Date, either of the following: (a) terminate this Agreement, in Section 5.3(cwhich event Purchaser will receive from the Escrow Agent the Xxxxxxx Money Deposit, together with all interest accrued thereon, and reimbursement from Seller of Purchaser’s reasonable out of pocket costs and expenses payable to third parties in connection with this transaction; provided, however, that the reimbursement by Seller to Purchaser under this Agreement shall not exceed One Hundred Forty-Seven Thousand Five Hundred Eleven Dollars and no/100 Cents ($147,511.00) which matters and the aggregate reimbursement by Seller to Purchaser under this Agreement and the Other P&S Agreements shall not exceed Seven Hundred Fifty Thousand Dollars ($750,000.00) (the “Reimbursement Cap”); whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; or (b) seek to enforce specific performance of Seller’s obligation to execute the documents required to convey the Property to Purchaser, it being understood and agreed that the remedy of specific performance shall not be handled in accordance with the provisions set forth therein, available to enforce any other obligation of Seller hereunder. Purchaser expressly waives its rights to seek damages in the event of Seller’s default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts Purchaser shall be deemed to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) elected to terminate this Agreement and receive reimbursement back the Xxxxxxx Money Deposit if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located on or before thirty (30) days following the Scheduled Closing Date. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in pursuing remedies of a breach by Seller of any of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase PriceTermination Surviving Obligations.
Appears in 1 contract
Default by Seller. Except If the transaction is not consummated as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in the event a result of a default by Seller, Buyer then Buyer, as its sole and only remedies hereunder, to the exclusion of all other potential remedies under this Agreement, at law or in equity, may either (i) terminate this Agreement by delivery of notice of termination to Seller, whereupon (A) the Xxxxxxx Money plus interest accrued thereon shall provide written notice be immediately returned to Seller of said default Buyer, and (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. B) Seller shall pay to Buyer its Expense Reimbursement, in which case neither Party shall have a period any further rights or obligations hereunder other than those rights and obligations which expressly survive termination of this Agreement; or (ii) continue this Agreement pending Buyer’s action for specific performance, provided, however, that any such action for specific performance shall not include an action for damages and shall be filed and served by Buyer within thirty (30) days after receipt of written notice from the date which is the later of (x) the termination of this Agreement by Seller, or (y) the date on which Buyer has Actual Knowledge of the event or occurrence comprising the alleged default on the part of Seller, it being the intent of the Parties hereto that any failure of Buyer to Seller of meet the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties time deadline set for filing shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination deemed to be Buyer’s election to waive and relinquish any rights to enforce specific performance of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or Buyer files an action for specific performance in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or accordance with subparagraph (ii) proceed above and Seller prevails in such action, then in addition to Closing hereunderits obligations under Section 15(l) below, Buyer shall be obligated to pay to Seller an amount equal to the Specific Performance Amount as liquidated damages in order to compensate Seller for actual costs, damages and losses, as well as lost opportunity costs, suffered by Seller due to its inability to sell the Property to a third party pending the resolution of Buyer’s specific performance action. Buyer acknowledges that the damages suffered by Seller due to a delay in selling the Property are difficult to determine and that the Specific Performance Amount has been agreed upon, after negotiation, as the parties’ reasonable estimate of such Seller’s damages. In no event shall Seller be liable to Buyer in connection with no abatement ofany breach or default on the part of Seller under this Agreement for any incidental, credit against special, exemplary, punitive or reduction consequential damages, including, without limitation, loss of profits or revenue, interference with business operations, loss of tenants, lenders, investors, buyers, diminution in value of the Property, or inability to use the Property. Notwithstanding anything to the Purchase Price.and Sale Agreement contrary herein, Buyer on its own behalf and on behalf of its agents, members, partners, employees, representatives, officers, directors, agents, related and affiliated entities, successors and assigns (collectively, the “Buyer Parties”) hereby agrees that IN NO EVENT OR CIRCUMSTANCE SHALL ANY OF THE DIRECT OR INDIRECT MEMBERS, PARTNERS, EMPLOYEES, REPRESENTATIVES, OFFICERS, DIRECTORS, AGENTS, PROPERTY MANAGEMENT COMPANY, AFFILIATED OR RELATED ENTITIES OF SELLER OR SELLER’S PROPERTY MANAGEMENT COMPANY (COLLECTIVELY, THE “SELLER PARTIES”) HAVE ANY PERSONAL LIABILITY UNDER THIS AGREEMENT. Buyer’s Initials
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Realty Trust, Inc.)
Default by Seller. Except If the sale of the Property as otherwise set forth in Section 5.3(ccontemplated hereunder is not consummated due to Seller's default hereunder, then Purchaser shall be entitled, as its sole remedy for such default, either (a) to receive the return of the Xxxxxxx Money, which matters will be handled in accordance with return shall operate to terminate this Agreement and release Seller from any and all liability hereunder (other than the provisions set forth thereinobligations which expressly survive termination, including without limitation any obligation of Seller under this Agreement to pay to Purchaser the Third Party Costs), or (b) to enforce specific performance of Seller's obligations under this Agreement. Purchaser expressly waives and releases its rights to seek damages in the event of Seller's default by hereunder; provided, however, (1) that if Seller, Buyer shall provide written notice to Seller of said ’s default (the “Seller Default”). If the constitutes an Intentional Seller Default can be cured by (as hereinafter defined) and Purchaser makes the election in clause (a) above, then Purchaser shall also have the right to xxx Seller at for money damages, in an expense not amount equal to exceed the lesser of (i) two percent (2% %) of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction Price in the Purchase Price aggregate, or (ii) the amount of all direct, third-party out-of-pocket costs and expenses actually incurred by Purchaser in connection with this Agreement, and the inspection, acquisition and financing of said Property (the “Third Party Costs”); and (2) if Seller’s default does not constitute an Intentional Seller Default, but such default occurs after that date on which the Purchaser’s lender issues and the Purchaser accepts a rate lock agreement, and Purchaser makes the election in clause (a) above, then Purchaser shall also have the right to xxx Seller for money damages in an amount equal to the lesser of (i) Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00), or (ii) one-half (1/2) of Purchaser’s Third Party Costs. In no event (except as provided in Section 5.3) shall Seller be liable for consequential, speculative, remote or punitive damages, or any other damages other than Third-Party Costs, and Purchaser hereby waives and releases any right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third-Party Costs to be limited in all cases as provided above). Purchaser shall be deemed to have elected to terminate this Agreement and receive reimbursement back the Xxxxxxx Money if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located, on or before sixty (60) days following the last date upon which Closing could have occurred. “Intentional Seller Default” means any one or more of the Exxxxxx Money following: (including all interest thereona) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that results in which event both parties shall Purchaser’s inability to consummate the transaction contemplated in this Agreement for a reason other than Purchaser’s default or the failure of any condition to Closing to be released satisfied. If the equitable remedy of all further liability hereunderspecific performance is not available due to an Intentional Seller Default, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price Purchaser may seek any other right or remedy available at law or in the equity; provided, however, that in no event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further Seller’s liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Priceexceed $500,000.00.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Steadfast Income REIT, Inc.)
Default by Seller. Except as otherwise set forth in Section 5.3(c) which matters will be handled In the event Seller fails to close this transaction in accordance with the provisions terms hereof within the time set forth thereinabove, Buyer at Buyer’s option shall be entitled to take one of the following, and only one of the following, mutually exclusive actions, as Buyer’s exclusive remedy: (a) terminate this Agreement, whereupon the Escrow Agent shall return the Deposit (less the Independent Consideration) to Buyer and this Agreement shall terminate and become null and void and of no effect and the parties shall be released from all further obligations hereunder except for such liabilities and obligations that are expressly stated herein to survive termination of this Agreement and; (b) waive any such failure and proceed with the Closing or (c) Buyer may seek the specific performance of Seller’s obligations under this Agreement from a court of competent jurisdiction by a date which is no later than ninety (90) days after the scheduled Closing Date. To the extent any such default involves a default of any of Seller’s covenants set forth in Paragraph 5.2(a) or (b) hereof and/or a default of such a nature that Buyer shall be precluded from obtaining specific performance (e.g., Seller conveys the Property to a bona fide third party who takes without knowledge of this Agreement), then, in the event of default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or by Buyer, in addition to the return of the Deposit to Buyer, Seller shall, within two (2) business days thereafter, pay to Buyer, as liquidated damages and not as a penalty, the sum of (i) an amount equal to all third party out of pocket costs and expenses incurred by Buyer in connection with the transaction contemplated hereby, and (ii) proceed an amount equal to Closing hereunderthe amount of the Deposit, the same being deemed Buyer’s damages on account thereof, the exact amount of damages to be suffered by Buyer on account of any such default being difficult if not impossible to ascertain and Buyer and Seller agreeing that such amount is a reasonable approximation of the damages to be suffered by Buyer on account thereof. Notwithstanding the foregoing, with no abatement ofrespect to a default under Paragraph 5.2(a), credit against or reduction Buyer shall only be entitled to the liquidated damages set forth in the Purchase Priceimmediately prior sentence if such default first occurs after the expiration of the Review Period. Buyer waives all other rights and remedies it may have at law or in equity against Seller arising out of a default by Seller.
Appears in 1 contract
Samples: Agreement for Sale and Purchase of Property (Phillips Edison - ARC Shopping Center REIT Inc.)
Default by Seller. Except If Closing of the purchase and sale transaction provided for herein does not occur as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in the event herein provided by reason of any default by of Seller, Buyer shall provide Purchaser may, as Purchaser’s sole and exclusive remedy, elect by written notice to Seller within five (5) days following the scheduled Closing Date, (a) to terminate this Agreement, in which event Purchaser will receive from the Title Company the Xxxxxxx Money Deposit and, if such default arises from Seller’s willful breach of said default (this Agreement or intentional misrepresentation, reimbursement of Purchaser’s out-of-pocket costs and expenses incurred in connection with the “Seller Default”). If the Seller Default can be cured transaction contemplated by Seller at this Agreement, in an expense amount not to exceed 2% $200,000.00, and Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations, or (b) pursue specific performance of the Purchase Pricethis Agreement, Seller must cure said Seller Default. so long as any action or proceeding commenced by Purchaser against Seller shall have a period of be filed and served within thirty (30) days after receipt of written notice from Buyer to Seller of the scheduled Closing Date, and, in either event, Purchaser hereby waives all other remedies, including without limitation, any claim against Seller Default for damages of any type or kind including, without limitation, consequential or punitive damages. Unless otherwise expressly required pursuant to this Agreement, in which no event shall Seller be obligated to cure such Seller Default. As soon as undertake any of the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to following (i) proceed to Closing hereunder with no abatement of, credit against change the condition of the Property or reduction in restore the Purchase Price same after any fire or casualty; (ii) expend money or post a bond to terminate this Agreement and receive reimbursement remove or insure over anything other than a Must-Cure Matter or to correct any matter shown on a survey of the Exxxxxx Money Property; (including all interest thereon)iii) secure any permit, approval, or consent with respect to the Property or Seller’s conveyance thereof; or (iv) expend any money to repair, improve or alter the Improvements or any portion thereof. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in which equity or as herein provided in the event both parties shall be released of all further liability hereundera breach by Seller of any of the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after termination, except for subject to the obligations hereunder which expressly survive the termination terms and provisions of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Price.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Hines Global REIT, Inc.)
Default by Seller. Except as otherwise set forth in Section 5.3(c(a) which matters will be handled in accordance with the provisions set forth therein, in In the event any Closing and any of the transactions contemplated hereby do not occur as herein provided by reason of any default by of Seller, Buyer shall provide Purchaser may, as Purchaser’s sole and exclusive remedy, elect by written notice to Seller within fifteen (15) days following the Scheduled Closing Date (as the same may be extended pursuant to any express provision of said default (the “Seller Default”this Agreement). If the Seller Default can be cured by Seller at an expense not to exceed 2% , any of the Purchase Pricefollowing: (i) proceed to Closing on the unaffected Projects and terminate this Agreement with respect to the Projects affected by any such default, Seller must cure said Seller Default. provided that Seller shall have a period of thirty (30) days after receipt of written notice from Buyer Purchaser to Seller cure any such default (the “Default Cure Period”) and if, at the expiration of the Seller Default in which to cure Cure Period, all such Seller Default. As soon as defaults are cured, the Seller Default has been cured by the Seller, Buyer parties shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts on all of the Projects as to cure said Seller Default, Seller canwhich Closing has not cure said Seller Default within the thirty yet occurred; or (30ii) day period, Seller may elect to extend delay the Closing an additional thirty on all of the Projects until the expiration of the Default Cure Period, at which time Purchaser may, by giving Seller written notice thereof, terminate this Agreement with respect to the Projects affected by any such default that has not been cured and proceed to Closing with respect to the remaining Projects or may terminate this Agreement with respect to all of the Projects; or (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (iiii) proceed to Closing hereunder with no abatement ofon the unaffected Projects and seek to enforce specific performance of Seller’s obligations under Article X of this Agreement, credit it being understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder. Purchaser shall be deemed to have elected not to proceed under clause (iii) of this Section 13.1 if after giving written notice as required above of its intent to seek specific performance, Purchaser has failed to file suit for specific performance against or reduction Seller in a court having jurisdiction in the Purchase Price county and state in which the relevant Project is located on or before forty-five (ii45) to terminate this Agreement and receive reimbursement of days following the Exxxxxx Money (including all interest thereon)Scheduled Closing Date, in which event both parties Purchaser shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost deemed to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either have elected to proceed under clause (i) to of this Section 13.1. Purchaser may not, in any event, terminate this Agreement and receive reimbursement by reason of Seller default with respect to any Project until the expiration of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase PriceDefault Cure Period.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty Corp)
Default by Seller. Except as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in In the event the close of Escrow and the consummation of the transaction here contemplated do not occur by reason of any default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option right to elect to either (i) proceed to Closing hereunder with no abatement ofobtain liquidated damages as hereinafter set forth as Buyer's sole remedy, credit against or reduction in the Purchase Price or (ii) institute an action for specific performance to terminate enforce Seller's obligations under this Agreement to convey title to the Land to Buyer and receive reimbursement to fulfill Seller's other obligations under this Agreement. If and only of Buyer elects to obtain liquidated damages, Buyer and Seller agree that it would be impractical and extremely difficult to estimate the damages that Buyer may suffer. Therefore, Seller and Buyer agree that a reasonable estimate of the Exxxxxx total net detriment that Buyer would suffer in the event that Seller defaults and fails to convey the Land to Buyer is an amount equal to the Earnest Money and accrued interest thereon and Buyer's predevelopmexx xxxxs and expenses, including without limitation, architectural, consultant, engineering, and legal fees and related costs not to exceed One Hundred Thousand and No/100 Dollars (including all interest thereon$100,000.00), in which event both parties amount shall be released of all further liability hereunderthe full, except agreed, and liquidated damages for the obligations hereunder which expressly survive the termination breach of this Agreement. In the event the cost ., all other claims to cure a Seller Default exceeds 2% of the Purchase Price damage or in the event the Seller Default is of a nature that it cannot be curedother remedies being herein expressly waived by Buyer, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except Buyer's sole and exclusive remedy for the obligations hereunder which expressly survive the termination breach of this Agreement (whether at law or (iiin equity) proceed unless Buyer elects to Closing hereunderinstitute an action for specific performance as set forth in this Section. The payment of this amount as liquidated damages is not intended as a forfeiture or penalty, with no abatement ofbut is intended to constitute liquidated damages to Buyer. Upon default by Seller, credit against this Agreement shall be terminated and neither party shall have any further rights or reduction in obligations under this Agreement, each to the Purchase Priceother, except that Escrow Holder shall promptly return the Earnest Money and accrued interest thereon to Buyer and except for xxx xxxht of Buyer to collect such predevelopment costs and expenses as liquidated damage from Seller.
Appears in 1 contract
Samples: Agreement of Purchase and Sale and Joint Escrow Instructions (Wellsford Residential Property Trust)
Default by Seller. Except as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in the event of default “Default by Seller” shall mean a failure by Seller to materially comply with or satisfy any covenant or agreement of Seller contained in this Agreement, Buyer shall provide written notice to or a material breach by Seller of said default (the “any representation or warranty of Seller Default”). If the Seller Default can be contained in this Agreement, which is not cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty within five (305) business days after following Seller’s receipt of written notice from Buyer Purchaser (other than failure to Seller of the Seller close for any reason unrelated to a Default by Purchaser, in which to case there shall be no notice or cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (; called the “Additional ExtensionPurchaser Notice”). If, If Closing is scheduled to occur less than five (5) business days after the Additional Extensiondate of the Purchaser Notice, Closing shall be extended by the number of days reasonably required to cure the default, not to exceed five (5) business days following Seller’s receipt of the Purchaser Notice. Upon the occurrence of a Default by Seller cannot beyond the cure said period set forth above, Purchaser may, at any time at or prior to Closing, by giving to Seller Defaultwritten notice of its election to either, Buyer shall have the option to elect to as Purchaser’s sole remedy (ia) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) to terminate this Agreement whereupon the Deposit, including, the Non-Refundable Deposit, shall be returned to Purchaser and receive reimbursement Seller shall pay to Purchaser any and all “Purchaser’s Costs” (defined below) incurred as of the Exxxxxx Money date of such termination; or (b) enforce specific performance of this Agreement. Upon termination of this Agreement by Purchaser and the return of the Deposit, including all interest thereon)the Non-Refundable Deposit pursuant to this Section 11.1, in which event both parties neither party shall be released of all have any further liability hereunderobligations to the other, except for as set forth in this Agreement. For purposes of this Agreement, “Purchaser’s Costs” shall mean the obligations hereunder which expressly actual verifiable expenses incurred by Purchaser, together with any non-refundable “rate lock” or “spread lock” deposits or fees paid not more than five (5) business days prior to the Closing Date in connection with any proposed financing, not to exceed the total sum of $800,000, paid or payable to (A) to Purchaser’s attorneys in connection with the negotiation of this Agreement or the proposed purchase of the Property, (B) to third party consultants in connection with the performance of examinations, inspections and/or investigations of the Property or (C) to any potential lender in connection with any proposed financing of the Property. Seller’s obligation to pay the Purchaser’s Costs shall survive the any termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Price.
Appears in 1 contract
Samples: Escrow Agreement (Steadfast Apartment REIT III, Inc.)
Default by Seller. Except as otherwise set forth in Section 5.3(cIf Seller fails to perform any obligation of Seller under this Agreement prior to or at Closing and does not cure such failure (a) which matters will be handled in accordance with the provisions set forth therein, in the event within one (1) Business Day after receipt of default by Seller, Buyer shall provide written notice from Buyer asserting such failure, if Seller fails to timely deliver Closing Documents or authorize Closing if and when required of Seller of said default for Closing to occur under this Agreement, or (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty b) within ten (3010) days after receipt of written notice from Buyer asserting such failure, if Seller fails to perform any other obligation of Seller (any such failure, if not cured within such period, being a “Seller Default”), then Buyer will elect by giving written notice to Seller and Escrow Agent after the occurrence of the Seller Default in which to cure such Seller Default. As soon , as the Seller Default has been cured by the Buyer’s sole and exclusive remedy against Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect either to (i) proceed to Closing hereunder terminate this Agreement, in which event Buyer shall receive a return of the Deposit, Seller will reimburse Buyer for all out-of-pocket costs and expenses incurred by Buyer in connection with this Agreement (which obligation shall survive such termination), provided, however, in no abatement ofevent shall such reimbursement exceed the Cost Reimbursement Cap, credit against and, except for Obligations Surviving Termination, neither of the Parties will have any further liability or reduction in the Purchase Price obligation under this Agreement, or (ii) to terminate bring a suit for specific performance against Seller to compel Seller to convey the Property to Buyer as required under this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon)Agreement; provided, however, in which event both parties shall be released connection with any suit for specific performance, Buyer must (x) maintain the full Deposit in escrow until and during the pendency of all further liability hereundersuch action, except for and (y) demonstrate to the obligations hereunder which expressly survive court’s reasonable satisfaction that Buyer had the termination ability to fund on the Closing Date (and, upon any subsequent award of this Agreement. In specific performance of such conveyance, will have the event ability to fund) the cost to cure a Seller Default exceeds 2% balance of the Purchase Price or in the event the Seller Default is of a nature that it cannot Price. Buyer shall be cured, Buyer may elect either (i) deemed to have elected to terminate this Agreement (as provided in Subsection 6.1(i) above) if Buyer does not deliver to Seller written notice of Buyer’s intent to file a cause of action for specific performance against Seller on or before sixty (60) days after such Seller Default, or having timely given Seller such notice, fails to file and receive reimbursement serve Seller with a lawsuit asserting such cause of the Exxxxxx Money action within sixty (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii60) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Pricedays after such notice.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Cole Office & Industrial REIT (CCIT II), Inc.)
Default by Seller. Except as otherwise set forth If Seller defaults in Section 5.3(cits obligations pursuant to this Agreement or breaches the terms hereof prior to Closing, Purchaser’s sole remedy shall be to elect one of the following: (a) to terminate this Agreement, in which matters will event Purchaser shall be handled entitled to the 400 X. Xxxxxxxxx PSA 21 return by the Title Company to Purchaser of the Xxxxxxx Money, and to receive from Seller reasonable, actual, and documented third party out-of-pocket costs incurred by Purchaser in accordance connection with this Agreement up to a maximum amount of $100,000, or (b) to bring a suit for specific performance, provided that the provisions set forth thereinelection of one such remedy shall be deemed a waiver of Purchaser’s rights to the other such remedy. Notwithstanding the foregoing, in the event that specific performance is legally unavailable as a remedy to Purchaser because of default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts affirmative act in transferring title to cure said Seller Defaultthe Property to any third party in contravention of Seller’s obligations to Purchaser hereunder, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer Purchaser shall have the option right to elect to (i) proceed to Closing hereunder with no abatement ofpursue any remedy at law or in equity including, credit against or reduction in the Purchase Price or (ii) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon)without limitation, in which event both parties a claim for damages, provided that such claim shall be released subject to the terms and conditions of all further liability hereunderSection 10.6 hereof. IN NO EVENT SHALL SELLER, except for the obligations hereunder which expressly survive the termination of this AgreementITS DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS, OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE, ATTORNEY, OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY, BEYOND ITS INTEREST IN THE REAL PROPERTY AND THE PROCEEDS THEREOF, FOR ANY CLAIM, CAUSE OF ACTION, OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase PriceIN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cole Corporate Income Trust, Inc.)
Default by Seller. Except In the event that Seller fails to consummate this Agreement for any reason other than Purchaser’s default or the permitted termination of this Agreement by Seller or Purchaser as otherwise set forth in Section 5.3(cherein expressly provided, Purchaser shall be entitled, as its sole remedy, either (a) to receive the return of the Xxxxxxx Money, which matters will return shall operate to terminate this Agreement and release Seller from any and all liability hereunder, or (b) to enforce specific performance of Seller’s obligation to execute the documents required to convey the Property to Purchaser, it being understood and agreed that the remedy of specific performance shall not be handled in accordance with the provisions set forth therein, available to enforce any other obligation of Seller hereunder. Purchaser expressly waives its rights to seek damages in the event of Seller’s default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts Purchaser shall be deemed to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) elected to terminate this Agreement and receive reimbursement of back the Exxxxxx Xxxxxxx Money (including all interest thereon), if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which event both parties the Property is located, on or before thirty (30) days following the date upon which Closing was to have occurred. Notwithstanding the foregoing, (a) nothing contained in this Section 6.3 shall be released limit or prevent Purchaser from (i) asserting any legal or equitable claims against Seller for Purchaser’s obligation to pay attorneys’ fees and other amounts under Section 10.19, or (ii) enforcing any indemnity obligation of all further liability hereunderSeller under this Agreement or preclude Purchaser from obtaining a damage award in connection therewith, except for the or (iii) enforcing Seller’s other obligations hereunder and liabilities which expressly survive the Closing or a termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or , and (b) in the event the that any such failure by Seller Default is of such a nature that it canspecific performance as a remedy is not be curedavailable as a matter of law, Buyer may elect either (i) then, Purchaser shall have the right, anything herein contained to terminate the contrary notwithstanding, to damages against Seller on account of such failure to compensate Purchaser for all of its third party out of pocket costs and expenses incurred in connection with the transaction contemplated hereby and this Agreement and receive reimbursement Agreement, but not in excess of the Exxxxxx Money sum of One Hundred Thousand and No/100 Dollars (including all interest thereon), $100,000.00) and Purchaser shall have the right to pursue an action for such damages in which event both parties shall be released a court of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Pricecompetent jurisdiction.
Appears in 1 contract
Samples: Purchase and Sale Agreement and Joint Escrow Instructions (Pebblebrook Hotel Trust)
Default by Seller. Except as otherwise set forth In the event Seller is in Section 5.3(cmaterial breach of or fails or refuses to perform its material obligations under this Agreement, then, after not less than ten (10) which matters will be handled in accordance with the provisions set forth thereindays prior written notice and opportunity to cure, in addition to Buyer’s rights and remedies (and subject to the event limitations under Article 8) with regard to Seller’s breach of default by Sellerany of its representations and warranties hereunder, at Buyer’s option, as Buyer’s sole remedies hereunder either (a) the Exxxxxx Money, to the extent paid, shall be refunded to Buyer on demand, and Buyer shall provide written notice be entitled to reimbursement by Seller of said default (the “Seller Default”). If the Seller Default can be cured Buyer’s actual, documented, out-of-pocket third-party expenses and costs, including reasonable attorneys’ fees, incurred by Seller at an expense Buyer in connection with its due diligence investigations not to exceed 2% of the Purchase PriceFifty Thousand and 00/100 Dollars ($50,000.00), Seller must cure said Seller Default. Seller whereupon this Agreement shall be terminated and neither party shall have a period any further rights or obligations with respect hereto except as specifically set forth herein, or (b) Buyer shall have the right to seek specific performance of this Agreement and assert as an alternative remedy in the complaint the remedy outlined in Clause (a), which right must be exercised by Buyer within thirty (30) days after receipt following delivery of Buyer’s written default notice to Seller described above. Buyer shall make an election between remedy under Clause (a) of Clause (b) by providing Seller with written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default election within the thirty (30) day perioddays of a default by Seller. If Buyer pursues its remedy under clause (a) above, Buyer shall provide to Seller may elect a detailed breakdown of Buyer’s actual, out-of-pocket, third-party expenses and costs along with supporting documentation and Buyer shall have no right to extend receive any other equitable or legal relief. Notwithstanding the Closing an additional foregoing, Buyer shall be deemed to have waived its right to specific performance if Buyer fails to file suit for specific performance against Seller on or before thirty (30) day period (days following the “Additional Extension”)scheduled Closing Date. If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have not be entitled to record a lis pendens against the option to elect to (i) proceed to Closing hereunder Property other than in connection with no abatement of, credit against or reduction in any such timely filed specific performance action. Notwithstanding the Purchase Price or (ii) to terminate provisions of this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereonSection 18(a), in which the event both parties specific performance is unavailable because of an act of willful misconduct by Seller (for example, but not by way of limitation, because Seller has conveyed or encumbered all or a part of the Property to a third party without notice) Buyer shall, in addition to the remedy under clause (a) above, be entitled to recover its actual damages (but not exemplary or punitive damages) incurred as a result of Seller’s default. The remedies set forth in this Section 18(a) shall be released of Buyer’s sole remedies arising from a default, breach or failure to perform by Seller. Buyer hereby waives for itself and anyone who may claim by or through Buyer, any and all further liability hereunderrights to pursue any other remedial rights or sxx or recover any amounts from Seller (including, without limitation, punitive, indirect and consequential damages), except for to the obligations hereunder which expressly extent set forth in the foregoing clauses (a) or (b) and except as set forth in Article 8, and shall not commence or pursue any such remedy. No partner, manager of, member or, beneficial interest holder in or agent of Seller, nor any advisor, trustee, manager, member, director, officer, employee, beneficiary, shareholder, participant, representative or agent of any company, corporation or trust that is or becomes a member, trustee or manager of Seller (collectively “Seller Parties”), shall have any personal liability, directly or indirectly, under or in connection with this Agreement or any agreement made or entered into under or pursuant to the provisions of this Agreement, or any amendment or amendments to any of the foregoing made at any time or times, heretofore or hereafter, or in or with respect to any document, agreement or instrument delivered at Closing, except to the extent such parties are determined, pursuant to a final, non-appealable judgment, to have knowingly and intentionally defrauded Buyer. Notwithstanding anything contained herein to the contrary, the terms of this Section 18(a) shall survive Closing and the delivery of the deed and termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Price.
Appears in 1 contract
Samples: Proration Agreement (Medalist Diversified REIT, Inc.)
Default by Seller. Except In the event the Closing and the transactions contemplated hereby do not occur as otherwise set forth herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedy, elect by notice to Seller within ten (10) Business Days following the Scheduled Closing Date, either of the following: (a) terminate this Agreement, in Section 5.3(cwhich event Purchaser will receive from the Escrow Agent the Xxxxxxx Money Deposit, together with all interest accrued thereon, and reimbursement from Seller of Purchaser’s reasonable out of pocket costs and expenses payable to third parties in connection with this transaction; provided, however, that the reimbursement by Seller to Purchaser under this Agreement shall not exceed Eighty-Seven Thousand Seven Hundred Thirty-Six Dollars and no/Cents ($87,736.00) which matters and the aggregate reimbursement by Seller to Purchaser under this Agreement and the Other P&S Agreements shall not exceed Seven Hundred Fifty Thousand Dollars ($750,000.00) (the “Reimbursement Cap”); whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; or (b) seek to enforce specific performance of Seller’s obligation to execute the documents required to convey the Property to Purchaser, it being understood and agreed that the remedy of specific performance shall not be handled in accordance with the provisions set forth therein, available to enforce any other obligation of Seller hereunder. Purchaser expressly waives its rights to seek damages in the event of Seller’s default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts Purchaser shall be deemed to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) elected to terminate this Agreement and receive reimbursement back the Xxxxxxx Money Deposit if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located on or before thirty (30) days following the Scheduled Closing Date. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in pursuing remedies of a breach by Seller of any of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase PriceTermination Surviving Obligations.
Appears in 1 contract
Default by Seller. Except as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in In the event the Closing of the purchase and sale transaction provided for herein does not occur as herein provided by reason of any default by of Seller, Buyer shall provide written Purchaser may, as Purchaser’s sole and exclusive remedy, elect by notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of within thirty (30) days after receipt of written notice from Buyer to Seller following the scheduled Closing Date, either of the Seller Default following: (a) terminate this Agreement, in which event Purchaser will receive from the Title Company the Xxxxxxx Money Deposit whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to cure such the Termination Surviving Obligations; or (b) pursue specific performance of this Agreement so long as any action or proceeding commenced by Purchaser against Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default be filed and served within the thirty (30) day period, Seller may elect to extend days of the Closing Date; and provided further if specific performance is not an additional available remedy hereunder, then Purchaser’s sole remedy shall be to terminate this Agreement and receive from the Title Company the Xxxxxxx Money Deposit, whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; provided, however, in the event Purchaser is unable to pursue specific performance because of Seller’s sale of the Property to a bona fide third-party purchaser, then Purchaser shall have the right to terminate this Agreement and receive from the Title Company the Xxxxxxx Money Deposit and from Seller (a) all of Purchaser’s actual out-of-pocket expenses incurred in connection with this transaction and (b) contract damages equal to the excess amount, if any, at which Seller sold the Property to the bona fide third party purchaser over the Purchase Price, whereupon Purchaser and Seller shall have no further rights or obligations under this Agreement except with respect to the Termination Surviving Obligations. In either event, Purchaser hereby waives all other remedies, including without limitation, any claim against Seller for damages (other than out-of-pocket expenses in the specific instance described above) of any type or kind including, without limitation, consequential or punitive damages. Failure of Purchaser to make the foregoing election within the foregoing thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) be deemed an election by Purchaser to terminate this Agreement and receive reimbursement of from the Exxxxxx Title Company the Xxxxxxx Money (including all interest thereon)Deposit, whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price equity or as herein provided in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement breach by Seller of any of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for Closing Surviving Obligations after Closing or the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase PriceTermination Surviving Obligations after termination.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Wells Real Estate Investment Trust Ii Inc)
Default by Seller. Except In the event the Closing and the transactions contemplated hereby do not occur as otherwise set forth herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedy, elect by written notice to Seller within fifteen (15) Business Days following the Scheduled Closing Date, either of the following: (a) terminate this Agreement, in Section 5.3(cwhich event Purchaser will receive from the Escrow Agent the Xxxxxxx Money Deposit together with all interest accrued thereon and Seller pay to Purchaser an amount equal to its reasonable out-of-pocket expenses incurred by Purchaser such amount not to exceed Five Hundred Thousand Dollars ($500,000.00), whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; or (b) which matters will be handled in accordance with seek to enforce specific performance of Seller’s obligations hereunder. Notwithstanding the provisions set forth thereinforegoing, in the event the Closing and the transactions contemplated hereby do not occur as herein provided by reason of any willful material default of Seller, Purchaser and Seller agree that Purchaser may, as Purchaser’s sole and exclusive remedy, elect by written notice to Seller within thirty (30) Business Days following the Scheduled Closing Date, either of the following: (a) terminate this Agreement, in which event Purchaser will receive from the Escrow Agent the Xxxxxxx Money Deposit together with all interest accrued thereon and Seller shall pay to Purchaser an amount equal to Five Hundred Thousand Dollars ($500,000.00) as the full, agreed and liquidated damages for Seller’s default and failure to complete the sale of the Property, whereupon this Agreement will terminate and Seller and Purchaser will have no further rights or obligations hereunder, except with respect to the Termination Surviving Obligations; or (b) seek to enforce specific performance of Seller’s obligations hereunder. Except as provided in this Section with regard to out-of pocket expenses and the liquidated damages in the event of a willful material default by Seller, Buyer shall provide written notice Purchaser expressly waives its rights to Seller seek damages in the event of said Seller’s default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts Purchaser shall be deemed to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) elected to terminate this Agreement and receive reimbursement of back the Exxxxxx Xxxxxxx Money (including all interest thereon), Deposit if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Property is located or provide Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is with notice of a nature that it cannot be curedwillful material default, Buyer may elect either on or before ninety (i90) to terminate this Agreement and receive reimbursement of days following the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Scheduled Closing hereunder, with no abatement of, credit against or reduction in the Purchase PriceDate.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty Corp)
Default by Seller. Except as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth thereinIf, through no fault of Purchaser, Seller defaults in the event performance of its obligations hereunder, then provided Purchaser is not in default of any of its obligations under this Agreement, Purchaser by written notice of default by to Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) to terminate this Agreement and receive reimbursement immediately may demand the return of the Exxxxxx Money Deposit from the Trustee and any interest accrued thereon together with a certified check or cashier's check to order of Purchaser in payment of all reasonable expenses actually incurred by Purchaser for: (including all i) the due diligence investigations provided for in subparagraphs A, B. C, D, E, F, G, H and I of paragraph 10 of this Agreement; and (ii) reasonable legal fees in connection with the transactions contemplated by this Agreement. The parties recognize that Seller's default will cause substantial injury to Purchaser and agree that the amount represented by the interest thereon)accrued on the Deposit, and the liquidated damages as calculated in which event both parties subparagraphs 11.B.(i) and (ii) above shall be released a fair and reasonable approximation of all the damages Purchaser will suffer in the event of Seller's default. It is understood and agreed upon that upon Seller's default and Purchaser's receipt of the Deposit together with any interest accrued thereon, and a certified check or cashier's check to the order of Purchaser in the amount of said liquidated damages due Purchaser, this Agreement will terminate and the parties will have no further liability hereunder, or obligation hereunder except for for: (i) Purchaser's obligation to return to Seller all documents and plans delivered to Purchaser by Seller; and (ii) the indemnification obligations hereunder which expressly of the parties as provided in paragraph 10 of this Agreement. Seller's and Purchaser's obligation to indemnify the Trustee and hold it harmless (as provided in Schedule C) shall survive the any such termination of this Agreement. In the event the cost As an alternative to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) Purchaser's election to terminate this Agreement by reason of Seller's default, Purchaser shall have the right to: (i) specifically enforce this Agreement and receive reimbursement Seller's obligations hereunder; and (ii) seek actual damages, including, but not limited to, reasonable legal fees incurred by Purchaser by reason of the Exxxxxx Money Seller's default (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except excluding expenses incurred by Purchaser for the obligations hereunder which expressly survive the termination due diligence investigations provided for in subparagraphs X, X, X, X, X, X, X, X and I of paragraph 10 of this Agreement or (ii) proceed and legal fees in connection with the transactions contemplated by this Agreement prior to Closing hereunder, with no abatement of, credit against or reduction in the Purchase PriceSeller's default).
Appears in 1 contract
Default by Seller. Except as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in In the event that a Seller defaults in its obligation to consummate the Closing, Purchaser shall be entitled, as its sole remedy, either (a) to receive the return of default the Xxxxxxx Money, and prompt reimbursement from Sellers of the direct and actual reasonable out-of-pocket due diligence costs and expenses incurred by SellerPurchaser to third parties that are not affiliated with Purchaser (documented by invoices received by Purchaser from such third parties) in connection with this transaction, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% $250,000 in the aggregate, which return and reimbursement shall operate to terminate this Agreement in its entirety and release Sellers from any and all liability hereunder, or (b) to enforce specific performance of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty obligations hereunder (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement ofwithout abatement, credit against or reduction of the Purchase Price). Except as set forth in clause (a) above and in the Purchase Price or (ii) last sentence of this Section 6.2, Purchaser expressly waives its rights to seek any damages in the event of a Seller’s default hereunder. Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money and reimbursement of for its actual reasonable out-of-pocket due diligence costs and reasonable expenses not to exceed $250,000 in the Exxxxxx Money (including all interest thereon)aggregate, if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which event both parties shall be released the Property is located, on or before thirty (30) days following the date upon which Closing was to have occurred (and Purchaser irrevocably waives any right to file suit for specific performance after the end of all further liability such 30-day period). Notwithstanding anything herein to the contrary, if the equitable remedy of specific performance is not available because a Seller is not the owner of a Property, but for no other reason, Purchaser may seek any other right or remedy available at law or in equity that it may have against Sellers hereunder for such default hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be curedincluding monetary damages, Buyer may elect either (i) to terminate this Agreement but excluding special, consequential and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Pricepunitive damages.
Appears in 1 contract
Default by Seller. Except If Seller defaults hereunder in any material respect, or if any of Seller’s representations and warranties hereunder are not are not true and correct in all material respects on the Effective Date, and Seller fails to cure such default or breach within five (5) business days after Purchaser provides Seller with written notice thereof, Purchaser shall be entitled, as otherwise set forth its sole and exclusive remedy, either (a) to receive the return of the Deposit and reimbursement from Seller of Purchaser’s out-of-pocket costs paid in Section 5.3(cconnection with the transactions hereunder (such reimbursement not to exceed Three Hundred Thousand and No/100 Dollars ($300,000.00) in the aggregate) (which matters will be handled reimbursement obligation shall survive the termination of this Agreement), which return and reimbursement shall operate to terminate this Agreement and release Seller from any and all liability hereunder, or (b) to enforce specific performance of Seller’s obligation to convey the Property to Purchaser in accordance with the provisions set forth thereinterms of this Agreement, it being understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder. Purchaser expressly waives its rights to seek damages in the event of Seller’s default by Sellerhereunder (other than the reimbursement of Purchaser’s costs as provided in the clause (a) of the immediately preceding sentence); provided, Buyer shall provide written notice however, if specific performance is not available due to Seller of said default (having sold or conveyed the “Seller Default”)Property to another party, then there will be no limit Purchaser’s right to damages hereunder, including, without limitation, consequential damages. If the Seller Default can Purchaser shall be cured by Seller at an expense not deemed to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) elected to terminate this Agreement and receive back the Deposit and reimbursement of its costs if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the Exxxxxx Money (including all interest thereon), county and state in which event both parties shall be released of all further liability hereunderthe Property is located, except for on or before thirty (30) days following the obligations hereunder date upon which expressly survive the termination of this Agreement. In the event the cost Closing was to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Pricehave occurred.
Appears in 1 contract
Default by Seller. Except In the event the Closing and the transactions contemplated hereby do not occur as otherwise set forth herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedy, elect by notice to Seller within ten (10) Business Days following the Scheduled Closing Date, either of the following: (a) terminate this Agreement, in Section 5.3(cwhich event Purchaser will receive from the Escrow Agent the Xxxxxxx Money Deposit, together with all interest accrued thereon, and reimbursement from Seller of Purchaser’s reasonable out of pocket costs and expenses payable to third parties in connection with this transaction; provided, however, that the reimbursement by Seller to Purchaser under this Agreement shall not exceed Fifty-Eight Thousand Four Hundred Ninety-One Dollars and no/100 Cents ($58,491.00) which matters (the “Reimbursement Cap”); whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; or (b) seek to enforce specific performance of Seller’s obligation to execute the documents required to convey the Property to Purchaser, it being understood and agreed that the remedy of specific performance shall not be handled in accordance with the provisions set forth therein, available to enforce any other obligation of Seller hereunder. Purchaser expressly waives its rights to seek damages in the event of Seller’s default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts Purchaser shall be deemed to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) elected to terminate this Agreement and receive reimbursement back the Xxxxxxx Money Deposit if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located on or before thirty (30) days following the Scheduled Closing Date. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in pursuing remedies of a breach by Seller of any of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase PriceTermination Surviving Obligations.
Appears in 1 contract
Default by Seller. Except Notwithstanding any provision in this Agreement to the contrary, if Closing of the purchase and sale transaction provided for herein does not occur as otherwise set forth in Section 5.3(cherein provided (time being of the essence) which matters will be handled in accordance with the provisions set forth therein, in the event by reason of any default by SellerSeller hereunder or a default by Polish Sellers under the Polish Purchase Agreement, Buyer shall provide the Purchasers may, as their sole and exclusive remedies, elect by written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to within five (5) Business Days following the scheduled Closing hereunder. IfDate, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty either (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (iia) to terminate this Agreement and receive reimbursement of to cause their Affiliates to cause the Exxxxxx Money (including all interest thereon)Polish Purchasers to terminate the Polish Purchase Agreement, in which event both parties the Purchasers shall receive from the Escrow Agent the Escrowed Deposit and the Polish Purchasers shall receive the Polish Deposit pursuant to the Polish Purchase Agreement, whereupon Seller and the Purchasers will have no further rights or obligations under this Agreement and the Polish Sellers and Polish Purchasers will have no further rights or obligations under the Polish Purchase 24 Agreement, except those obligations that expressly survive termination hereof and the Polish Purchase Agreement, (b) proceed to Closing to the extent reasonably practicable, in which case Seller shall not be entitled to refuse to proceed to Closing unless the Purchasers are in default hereunder or any condition to Seller’s obligation to consummate the Closing pursuant to Section 3.5(b) or Section 3.5(c) is not satisfied, or (c) postpone Closing to the date which is not later than ninety (90) days following the Closing Date (but in no event beyond the Long Stop Date), and, in any event, the Purchasers (for themselves and on behalf of the Polish Purchasers) hereby waive all other remedies against Seller or the Polish Sellers or their respective Affiliates, including any claim for damages of any type or kind including consequential or punitive damages. If the Purchasers elect to postpone Closing pursuant to the provisions of this Section 3.7, the provisions of this Agreement shall apply as if references to the Closing Date are to such postponed date (provided that Purchasers shall have no further right to postpone the Closing pursuant to this Section 3.7) and time shall be released of all further liability hereunder, except the essence for the purposes of such postponed Closing. Unless otherwise expressly required pursuant to this Agreement, in no event shall Seller be obligated to undertake any of the following: (A) change the condition of the Projects or restore the same after any fire or other casualty; (B) expend money or post a bond to remove or insure over any matter encumbering title to a Project; or (C) expend any money to repair, improve or alter a Project or any portion thereof. Notwithstanding the foregoing, nothing contained in this Section 3.7(a) will limit the Purchasers’ remedies at law, in equity or as herein provided in the event of a breach by Seller of any of its obligations hereunder which expressly survive Closing or under any of the termination Closing Documents, subject to the terms and provisions of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon)Section ARTICLE IX, in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Priceincluding Section 9.5.
Appears in 1 contract
Samples: Membership Interests Purchase and Sale Agreement (Hines Global REIT, Inc.)
Default by Seller. Except If the sale of the Property as otherwise set forth in Section 5.3(ccontemplated hereunder is not consummated due to Seller's default hereunder, then Purchaser shall be entitled, as its sole remedy for such default, either (a) to receive the return of the Xxxxxxx Money, which matters will return shall operate to terminate this Agreement and release Seller from any and all liability hereunder, or (b) to enforce specific performance of Seller's obligation to execute and deliver the documents required to convey the Property to Purchaser, it being understood and agreed that the remedy of specific performance shall not be handled in accordance with the provisions set forth therein, available to enforce any other obligation of Seller hereunder. Purchaser expressly waives its rights to seek damages in the event of Seller's default by hereunder; provided, however, that if Seller, Buyer shall provide written notice to Seller of said 's default (the “Seller Default”). If the constitutes an Intentional Seller Default can be cured by Seller at an expense (as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not to exceed 2% of the Purchase Priceavailable), Seller must cure said Seller Default. Seller then Purchaser shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall also have the option right to elect xxx Seller for money damages, in an amount equal to the lesser of (i) proceed to Closing hereunder with no abatement of, credit against or reduction TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in the Purchase Price aggregate, or (ii) the amount of all third-party out-of-pocket costs and expenses actually incurred by Purchaser in connection with this Agreement and the Property ("THIRD-PARTY COSTS"), including due diligence costs, engineering and environmental review costs, and legal fees and expenses. In no event shall Seller be liable for consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs, and Purchaser hereby waives any right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Party Costs to be limited in all cases as provided above). Purchaser shall be deemed to have elected to terminate this Agreement and receive reimbursement back the Xxxxxxx Money if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located, on or before sixty (60) days following the date upon which Closing was to have occurred. "INTENTIONAL SELLER DEFAULT" means any one or more of the Exxxxxx Money following: (including all interest thereona) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended to result in, and does result in, Purchaser's inability to consummate the transaction contemplated in which event both parties this Agreement for a reason other than Purchaser's default or the failure of any condition to Closing to be satisfied. For purposes of this Section 6.2, specific performance shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost considered not available to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect Purchaser if either (i) to terminate the nature of Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon)Agreement, in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed the court declines to Closing hereunder, with no abatement of, credit against or reduction in grant such specific performance for reasons other than the Purchase Pricemerits of Purchaser's underlying claim of default.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Post Apartment Homes Lp)
Default by Seller. Except In the event the Closing and the transactions contemplated hereby do not occur as otherwise set forth herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedy, elect by notice to Seller within ten (10) Business Days following the Scheduled Closing Date, either of the following: (a) terminate this Agreement, in Section 5.3(cwhich event Purchaser will receive from the Escrow Agent the Xxxxxxx Money Deposit, together with all interest accrued thereon, and reimbursement from Seller of Purchaser’s reasonable out of pocket costs and expenses payable to third parties in connection with this transaction; provided, however, that the reimbursement by Seller to Purchaser under this Agreement shall not exceed Forty-one Thousand Nine Hundred Thirty-three Dollars ($41,933) which matters and the aggregate reimbursement by Seller to Purchaser under this Agreement and the Other P&S Agreements shall not exceed Seven Hundred Fifty Thousand Dollars ($750,000) (the “Reimbursement Cap”); whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; or (b) seek to enforce specific performance of Seller’s obligation to execute the documents required to convey the Property to Purchaser, it being understood and agreed that the remedy of specific performance shall not be handled in accordance with the provisions set forth therein, available to enforce any other obligation of Seller hereunder. Purchaser expressly waives its rights to seek damages in the event of Seller’s default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts Purchaser shall be deemed to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) elected to terminate this Agreement and receive reimbursement back the Xxxxxxx Money Deposit if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located on or before thirty (30) days following the Scheduled Closing Date. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in pursuing remedies of a breach by Seller of any of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase PriceTermination Surviving Obligations.
Appears in 1 contract
Default by Seller. Except as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in the event of default by Seller, Buyer shall provide written notice If Seller fails to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% perform any of the Purchase Price, Seller must cure said Seller Default. Seller shall have material pre-Closing covenants and agreements contained herein and such condition or failure continues for a period of thirty (30) days (or such additional period as may be reasonably required to effectuate a cure of the same) after receipt notice thereof from Purchaser (except that there shall be no notice and cure period for Seller’s failure to perform its obligations on the Closing Date) (a “Seller Default”), Purchaser may (i) terminate this Agreement by delivery of written notice from Buyer to Seller of and Title Company, whereupon the Deposit shall be refunded to Purchaser, and the Parties shall have no further obligations to each other except as specifically provided herein; (ii) seek specific performance; or (iii) waive the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall and proceed to Closing hereunder. IfNotwithstanding anything herein to the contrary, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) to terminate event that Seller defaults in its obligations under this Agreement and receive reimbursement Purchaser terminates this Agreement and receives a refund of the Exxxxxx Money Deposit from the Title Company, Purchaser may also recover from Seller Purchaser’s actual out-of-pocket costs and expenses reasonably incurred in connection with its investigation of the Real Property and the Transaction up to an aggregate amount of Two Hundred Thousand Dollars (including all interest thereon$200,000). Purchaser hereby acknowledges and agrees that the recovery of the Deposit or, in which event both parties alternatively, the pursuit of specific performance against Seller shall be released the sole and exclusive remedy of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this AgreementPurchaser upon a Seller Default. In the event Purchaser prevails in a non-appealable judgment for specific performance thereunder, Seller shall reimburse Purchaser for all reasonable legal fees and disbursements, court costs, and all other reasonable and direct costs of such action, provided that no such action in specific performance shall seek to require Seller to do any of the cost following except as otherwise may be required under the terms and conditions of this Agreement: (x) change the condition of the Property from that existing on the date of this Agreement or restore the same after any fire or other casualty; or (y) expend money or post a bond to remove a title encumbrance or defect, other than Monetary Title Encumbrances, or correct any matter disclosed or shown on the Title Commitment. Purchaser shall be deemed to have waived its remedy of specific performance, as provided in this Section unless such action shall be instituted by Purchaser within sixty (60) days after Seller’s failure or refusal to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Priceas provided above.
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Ashford Hospitality Prime, Inc.)
Default by Seller. Except as otherwise In the event Seller fails to perform its obligations pursuant to this Agreement for any reason (except due to a failure of any Seller’s condition precedent set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth thereinthis Agreement or any default of Buyer to perform hereunder), in the event of default by Seller, then Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Priceelect, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Sellerits sole remedy, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to either to: (i) proceed terminate this Agreement by giving Seller and the Escrow Holder timely written notice of such election prior to or upon the Closing hereunder with no abatement ofDate, credit against or reduction in which case Buyer shall be entitled to a reimbursement of the Purchase Price entire Deposit; or (ii) provided that Buyer has previously tendered full performance of all of its obligations under this Agreement, enforce specific performance of this Agreement, in which event there shall be no reduction of the Purchase Price and Buyer shall not be entitled to recover any damages (whether actual, direct, indirect, consequential, punitive or otherwise) notwithstanding such failure or breach by Seller, provided that Buyer shall be entitled to collect any awarded attorneys’ fees and costs pursuant to Section 16.5. Buyer shall be deemed to have elected to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost pursuant to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either clause (i) hereinabove if Buyer fails to deliver to Seller written notice of its intent to commence an action to assert a claim for specific performance against Seller on or before ninety (90) days following the initially scheduled Closing Date, or having given such notice fails to commence such action asserting said claim on or before ninety (90) days following the initially scheduled Closing Date. Notwithstanding the foregoing to the contrary, no notice of termination given by Buyer due to a default of Seller hereunder shall be of any force or effect if Seller cures the default within five (5) Business Days after Seller’s receipt of any such termination notice and prior to the Closing Date. If Buyer duly elects to terminate or is deemed to have elected to terminate this Agreement pursuant to clause (i) hereinabove, then Buyer shall and receive reimbursement of hereby agrees in such event to waive any and all right to file or record any lis pendens or any other lien or encumbrance against the Exxxxxx Money Property or to seek specific performance or other equitable relief or to seek or recover from Seller any damages (including all interest thereonincluding, without limitation, any actual direct, indirect, consequential, punitive or other damages), . The foregoing remedies set forth in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or subsections (i) and (ii) proceed hereinabove are Buyer’s sole and exclusive remedies with respect to Seller’s default prior to the Closing, and Buyer waives any and all other remedies as may be available at law or in equity in connection with such Seller’s default (subject, however, to Buyer’s right to recover attorneys’ fees and court costs pursuant to Section 16.5). Any and all covenants and obligations of Seller and Buyer contained in this Agreement (including, without limitation, any default by Seller and Buyer of any such obligations and covenants) shall merge into the Deed and other Closing hereunderDocuments upon the Closing, with no abatement ofand shall not survive the Closing, credit against or reduction except to the extent otherwise expressly provided in the Purchase Price.this Agreement. Seller: (/s/DDS) Buyer: (/s/PR)
Appears in 1 contract
Samples: Agreement of Purchase and Sale and Joint Escrow Instructions (Bespoke Capital Acquisition Corp)
Default by Seller. Except In the event that the Close of Escrow does not occur as herein provided by reason of any material default of Seller and provided Buyer is not otherwise set forth in Section 5.3(cdefault, Buyer may, at its option and as its exclusive remedy, either (i) which matters terminate this Agreement by giving written notice of termination to Seller whereupon Escrow Holder will return to Buyer the Deposit, Seller shall reimburse Buyer for all costs and expenses incurred by Buyer in connection with the transactions contemplated by this Agreement, including, without limitation, attorney's fees and expenses, costs incurred as part of due diligence reviews and the performance of Buyer's obligations hereunder and any fees or deposits forfeited to Buyer's lender up to a maximum aggregate amount of One Hundred Thousand Dollars ($100,000.00) (collectively, "Transaction Costs"), and both Buyer and Seller will be handled relieved of any further obligations or liabilities hereunder, except for those obligations which expressly survive any termination hereof, or (ii) Buyer may seek specific performance of this Agreement. If Buyer elects the remedy in accordance with the provisions set forth thereinsubsection (ii) above, Buyer must commence and file such specific performance action in the event of default by Seller, Buyer shall provide written notice to Seller of said default appropriate court not later than forty-five (45) days following the “Seller Default”)scheduled Closing Date. If Buyer timely brings an action for specific performance under and pursuant to the terms of subsection (ii) above and the remedy of specific performance is not available because Seller Default can be cured by conveyed the Property to another party or Seller at subjected the Property to a Monetary Lien in an expense not to exceed 2% of amount greater than the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of in each case prior to the date that is thirty (30) days after receipt of the date upon which Buyer or Seller has delivered written notice from Buyer of termination of this Agreement to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Sellerother, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, then Buyer shall have the option right to elect bring a claim against Seller to (i) proceed recover Buyer's full actual damages arising from Buyer's inability to Closing hereunder with no abatement of, credit against or reduction purchase the Property. Except as specifically set forth in the Purchase Price or (ii) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be curedSection 16.1, Buyer does hereby specifically waive any right to pursue any other remedy at law or equity for such default of Seller, including, without limitation, any right to seek, claim or obtain damages, punitive damages or consequential damages; provided, however, that nothing herein shall vitiate or limit any right or remedy Buyer may elect either (i) have with respect to terminate this Agreement and receive reimbursement claims of Seller against Buyer to the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Priceextent based upon Seller’s Fraud.
Appears in 1 contract
Samples: Agreement of Purchase and Sale and Joint Escrow Instructions (Cohu Inc)
Default by Seller. Except as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in the event of default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed Seller shall default in any of its material obligations to be performed on the Closing hereunder with no abatement of, credit against or reduction in the Purchase Price Date or (ii) Seller shall default in the performance of any of its material obligations to be performed prior to the Closing Date and, with respect to any default under this clause (ii) only, such default shall continue for 5 days after notice to Seller, Purchaser shall have the right to elect, as its sole remedies, to (A) terminate this Agreement and receive reimbursement of by written notice to Seller, promptly after which the Exxxxxx Xxxxxxx Money shall be returned to Purchaser (including all interest thereonprovided Purchaser is not in default in any material respect hereunder), and Seller shall reimburse Purchaser for its actual, reasonable, third-party costs and expenses incurred in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of connection with this Agreement. In the event the cost , not to cure a Seller Default exceeds 2% of the Purchase Price or exceed $500,000 in the event aggregate, (B) waive the Seller Default is of a nature that it cannot be curedcondition and proceed to close the transaction, Buyer may elect either or (iC) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination seek specific performance of this Agreement by Seller and Seller shall reimburse Purchaser for its actual, reasonable, third-party costs and expenses incurred in enforcing such remedy; provided, however, that as a condition precedent to Purchaser exercising any right it may have to bring an action for specific performance as the result of Seller’s failure or (ii) proceed refusal to Closing perform its obligations hereunder, with no abatement ofPurchaser must commence such an action within sixty (60) days after Purchaser has Knowledge of such default. Purchaser agrees that its failure to timely commence such an action for specific performance within such sixty (60) day period shall be deemed a waiver by it of its right to commence such an action. NOTWITHSTANDING THE FOREGOING, credit against or reduction in the Purchase Price.IF SELLER OR THE SELLERS UNDER ANY RELATED AGREEMENT INTENTIONALLY BREACHES OR INTENTIONALLY FAILS TO TAKE AN ACTION SOLELY WITHIN THE CONTROL OF SELLER OR SUCH OTHER SELLER(S) THAT SELLER OR SUCH OTHER SELLER(S) IS/ARE OBLIGATED TO TAKE UNDER THIS AGREEMENT OR ANY RELATED AGREEMENT AND AS A RESULT THEREOF PURCHASER’S ABILITY TO CLOSE THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT OR ANY RELATED AGREEMENT IS MATERIALLY IMPAIRED, PURCHASER SHALL HAVE THE RIGHT TO COMMENCE A SUIT AGAINST SELLER AND/OR SUCH OTHER SELLER(S) FOR MONETARY DAMAGES IN AN AMOUNT NOT TO EXCEED FIVE MILLION DOLLARS ($5,000,000) IN THE AGGREGATE, AS LIQUIDATED DAMAGES, IT BEING UNDERSTOOD THAT PURCHASER’S ACTUAL DAMAGES IN THE EVENT OF SUCH DEFAULT ARE DIFFICULT TO ASCERTAIN AND THAT SUCH PROCEEDS REPRESENT THE PARTIES’ BEST CURRENT ESTIMATE OF SUCH. SAID LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OF PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTION 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO PURCHASER UNDER CALIFORNIA CIVIL CODE SECTIONS 1671 AND 1677. SELLER AND PURCHASER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION AND BY THEIR INITIALS IMMEDIATE BELOW AGREE TO BE BOUND BY ITS TERMS. SELLER’S INITIALS _________________________ PURCHASER’S INITIALS _________________________ OWNER’S INITIALS _________________________
Appears in 1 contract
Samples: Purchase and Sale Agreement (DiamondRock Hospitality Co)
Default by Seller. Except If the sale of the Property is not consummated because of default under or breach of this Agreement on the part of Seller which remains uncured for ten (10) calendar days after Purchaser’s notice to Seller thereof, unless such default cannot be cured by the payment of money and cannot with due diligence be wholly cured within such ten (10) day period, in which case Seller shall have such longer period as otherwise set forth shall be necessary to cure such default not to exceed twenty (20) calendar days after Purchaser’s notice to Seller, so long as Seller proceeds promptly to cure such default within such ten (10) day period, prosecutes such cure to completion with due diligence and advises Purchaser of the actions which Seller is taking and the progress being made, and all other conditions precedent to Closing have been satisfied or waived, Purchaser shall have the option, as its sole and exclusive remedy at law or in Section 5.3(cequity, to either: (a) which matters will be handled terminate this Agreement by delivery of written notice of termination to Seller and, (i) in accordance with Section 3(a)(5), the Deposit shall be returned to Purchaser, (ii) Purchaser shall be entitled to recover from Seller all of its actual, out-of-pocket, third party professional fees incurred in connection with Purchaser’s investigation of the Property, including without limitation legal fees and environmental consultants’ and engineers’ fees and costs (and excluding fees or costs related to any financing obtained by Purchaser with respect to the Cash Portion), up to but not in excess of Fifty Thousand Dollars ($50,000.00), and (iii) thereafter, Purchaser and Seller shall each be released from all liability hereunder (except for those provisions set forth therein, which recite that they survive termination); or (b) continue this Agreement and seek the equitable remedy of specific performance. The foregoing options are mutually exclusive and are the exclusive rights and remedies available to Purchaser at law or in equity in the event the sale of the Property is not consummated because of Seller’s default under or breach of this Agreement. Except as provided below, Purchaser hereby waives any and all rights it may now or hereafter have to pursue any other remedy or recover any other damages on account of any such breach or default by Seller, Buyer including, without limitation, loss of bargain, special, punitive, compensatory or consequential damages. Purchaser shall provide written notice be deemed to have elected its remedy under clause (a) of this Section if Purchaser fails to file suit for specific performance against Seller of said default in a court having jurisdiction in Somerset County, New Jersey, on or before ninety (90) days following the “Seller Default”)date upon which Closing was to have occurred. If Notwithstanding the Seller Default can be cured by Seller at an expense not to exceed 2% foregoing provisions, if sale of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period Property is not consummated because of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination willful default of this Agreement on the part of Seller beyond the applicable notice and grace period as provided above, and specific performance is not a legally available remedy (because, by way of one example only, Seller has wrongfully conveyed the Property to a third party bona fide purchaser for value without notice), or specific performance is not an adequate remedy because Seller has materially diminished the value of the asset (iiincluding, by way of one example only, entering into a long term lease in violation of its covenant not to do so as provided in Section 9(b)), Purchaser shall be entitled to pursue all remedies available to Purchaser at law or in equity as a result of Seller’s breach or default for recovery of its direct damages excluding consequential and punitive damages, limited as hereafter provided, provided suit for recovery is commenced within ninety (90) proceed days following the date upon which Closing was to Closing have occurred hereunder, with failing which all claims by Purchaser for damages pursuant to this sentence shall be waived and no abatement of, credit against or reduction longer enforceable. Any damages that Purchaser may be entitled to receive as provided in the Purchase Priceimmediately preceding sentence shall not exceed $1,500,000.00 in the aggregate.
Appears in 1 contract
Default by Seller. Except as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in the event of default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% sale of the Purchase PriceProperty as contemplated hereunder is not consummated due to Seller’s default in its obligations hereunder (as opposed to a mere failure of a condition hereunder), Seller must cure said Seller Default. Seller then Purchaser shall have a period of thirty be entitled, as its sole remedy for such default, either (30a) days after receipt of written notice from Buyer to Seller receive the return of the Seller Default in which Xxxxxxx Money to cure such Seller Default. As soon as the Seller Default has been cured extent paid by Purchaser and received by the SellerEscrow Agent, Buyer which return shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) operate to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including release Seller from any and all interest thereon), in which event both parties shall be released of all further liability hereunder, except for or (b) within sixty (60) days after the obligations hereunder which earlier of such default or the Closing Date, enforce specific performance of PAMI’s sole obligation to deliver the deed and Seller’s obligation to execute and deliver the documents required to convey the Property to Purchaser, it being understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder. Purchaser expressly survive the termination of this Agreement. In the event the cost waives its rights to cure a Seller Default exceeds 2% of the Purchase Price or seek damages in the event the of Seller’s default hereunder; provided, however, that if Seller’s default constitutes a Intentional Seller Default is (as hereinafter defined) and Purchaser makes the election described in clause (a) above, then Purchaser shall also have the right to xxx Seller to obtain reimbursement for Purchaser’s third-party out-of-pocket costs and expenses incurred in connection with this Agreement and the Property, including due diligence costs, engineering and environmental review costs, and legal fees and expenses, in an amount up to, but not exceeding, the lesser of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement One Hundred Fifty Thousand and receive reimbursement of the Exxxxxx Money No/100 Dollars (including all interest thereon$150,000.00), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed the actual costs and expenses (documented by receipts, invoices or similar written evidence) incurred by Purchaser for such third-party out-of-pocket costs and expenses. In no event shall Seller or PAMI be liable for consequential, speculative, remote or punitive damages, and Purchaser hereby waives any right to Closing hereunderseek or collect any such consequential, with no abatement of, credit against or reduction in the Purchase Price.speculative,
Appears in 1 contract
Samples: Purchase and Sale Agreement (Digital Realty Trust, Inc.)
Default by Seller. Except If the sale of the Property as otherwise set forth contemplated hereunder is not consummated due to Seller’s default hereunder, then Purchaser shall have the right to (i) seek to obtain specific performance of Seller’s obligations hereunder, provided that any action for specific performance shall be commenced within sixty (60) days after such default, and if Purchaser prevails thereunder, Seller shall reimburse Purchaser for all reasonable, actual legal fees, court costs and all other reasonable, actual costs of such action or (ii) terminate this Agreement and to receive the return of the Exxxxxx Money, which return shall operate to release Seller from any and all liability hereunder and to recover Purchaser’s costs and expenses incurred and paid to third parties in Section 5.3(cthe investigation of the Property, not to exceed Fifty Thousand and 00/100 Dollars ($50,000.00) which matters will be handled (the “Inspection Costs”).) (the “Inspection Costs”). In the event Purchaser elects to exercise option (ii) above, It is agreed between the parties hereto that the actual damages to Purchaser in accordance with the provisions set forth thereinevent of such default are impractical to ascertain and the amount of the Exxxxxx Money and the Inspection Costs is a reasonable estimate thereof, Purchaser hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Purchaser’s right to receive the Exxxxxx Money and the Inspection Costs is intended not as a penalty, but as full liquidated damages. The right to receive the Exxxxxx Money and the Inspection Costs as full liquidated damages is Purchaser’s sole and exclusive remedy in the event of Purchaser exercising option (ii) above in the event of default hereunder by Seller, Buyer and Purchaser hereby waives and releases any right to (and hereby covenants that it shall provide written notice not) sue Seller: (a) for specific performance of this Agreement, or (b) to Seller recover any damages of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% any nature or description other than or in excess of the Purchase Price, Seller must cure said Seller DefaultExxxxxx Money and the Inspection Costs. Seller hereby waives and releases any right to (and hereby covenants that it shall have not) sue Purchaser or seek or claim a period of thirty (30) days after receipt of written notice from Buyer to Seller refund of the Seller Default Exxxxxx Money (or any part thereof) on the grounds it is unreasonable in which to cure such Seller Defaultamount and exceeds Purchaser’s actual damages or that its retention by Purchaser constitutes a penalty and not agreed upon and reasonable liquidated damages. As soon as In the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) event Purchaser elects to terminate this Agreement and receive reimbursement a return of the Exxxxxx Money Deposit pursuant to sub-clause (including all interest thereon)ii) of the immediately preceding sentence, in which event both parties then upon such return and delivery, this Agreement shall be released of all terminate and neither party hereto shall have any further liability hereunder, obligations hereunder except for the obligations hereunder which those that are expressly provided in this Agreement to survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Pricehereof.
Appears in 1 contract
Default by Seller. Except In the event the Closing and the transactions contemplated hereby do not occur as otherwise set forth herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedy, elect by notice to Seller within ten (10) Business Days following the Scheduled Closing Date, either of the following: (a) terminate this Agreement, in Section 5.3(cwhich event Purchaser will receive from the Escrow Agent the Xxxxxxx Money Deposit, together with all interest accrued thereon, and reimbursement from Seller of Purchaser’s reasonable out of pocket costs and expenses payable to third parties in connection with this transaction; provided, however, that the reimbursement by Seller to Purchaser under this Agreement shall not exceed Thirteen Thousand Ninety-Four Dollars and no/100 Cents ($13,094.00) which matters and the aggregate reimbursement by Seller to Purchaser under this Agreement and the Other P&S Agreements shall not exceed Seven Hundred Fifty Thousand Dollars ($750,000.00) (the “Reimbursement Cap”); whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; or (b) seek to enforce specific performance of Seller’s obligation to execute the documents required to convey the Property to Purchaser, it being understood and agreed that the remedy of specific performance shall not be handled in accordance with the provisions set forth therein, available to enforce any other obligation of Seller hereunder. Purchaser expressly waives its rights to seek damages in the event of Seller’s default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts Purchaser shall be deemed to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) elected to terminate this Agreement and receive reimbursement back the Xxxxxxx Money Deposit if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located on or before thirty (30) days following the Scheduled Closing Date. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in pursuing remedies of a breach by Seller of any of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase PriceTermination Surviving Obligations.
Appears in 1 contract
Default by Seller. Except as otherwise set forth If Seller defaults in Section 5.3(c) which matters will its obligations to sell and convey the Property to Buyer pursuant to this Agreement, Buyer’s sole and exclusive remedy shall be handled in accordance with the provisions set forth therein, in the event of default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% elect one of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty following: (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (iia) to terminate this Agreement and receive reimbursement Agreement, in which event Buyer shall be entitled to the return by the Escrow Holder to Buyer of the Exxxxxx Money Deposit (including together with all interest thereon), (b) waive such default and proceed to Close of Escrow as set forth in which event both parties this Agreement, or (c) to bring a suit for specific performance provided that any suit for specific performance must be brought as to the Property within forty-five (45) days of Buyer’s actual knowledge of Seller’s default, Buyer’s waiving the right to bring suit at any later date to the extent permitted by law; provided further, however, to the extent that Seller causes Buyer’s remedy of specific performance to be unavailable by transferring the Property to a third-party prior to the Closing Date, Buyer shall be released entitled to exercise all remedies at law or in equity, including without limitation the right to pursue an action for recovery of all further liability hereunder, except Buyer’s actual damages resulting from Seller’s breach of its obligations under this Agreement not to exceed Two Hundred Thousand Dollars ($200,000) in the aggregate (inclusive of any amounts to be paid by Seller to Buyer for the obligations hereunder which expressly survive the termination Buyer’s out-of-pocket expenses that may be payable under other provisions of this Agreement. In Notwithstanding anything herein to the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be curedcontrary, Buyer may elect either (i) shall be deemed to have elected to terminate this Agreement and receive reimbursement if Buyer fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before forty-five (45) days following the Exxxxxx Money (including all interest thereon)scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which event both parties shall be released of all further liability hereunderthe Property is located within forty-five (45) days following the scheduled Closing Date. This Agreement confers no present right, except for the obligations hereunder which expressly survive the termination of this Agreement title or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction interest in the Purchase PriceProperty to Buyer and Buyer agrees not to file a lis pendens or other similar notice against the Real Property except in connection with, and after, the proper filing of a suit for specific performance.
Appears in 1 contract
Samples: Purchase and Sale Agreement and Escrow Instructions (KBS Real Estate Investment Trust, Inc.)
Default by Seller. Except In the event the Closing and the transactions contemplated hereby do not occur as otherwise set forth herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedy, elect by notice to Seller within ten (10) Business Days following the Scheduled Closing Date, either of the following: (a) terminate this Agreement, in Section 5.3(cwhich event Purchaser will receive from the Escrow Agent the Xxxxxxx Money Deposit, together with all interest accrued thereon, and reimbursement from Seller of Purchaser’s reasonable out of pocket costs and expenses payable to third parties in connection with this transaction; provided, however, that the reimbursement by Seller to Purchaser under this Agreement shall not exceed Sixty-seven Thousand Five Hundred Fifty-six Dollars ($67,556) which matters and the aggregate reimbursement by Seller to Purchaser under this Agreement and the Other P&S Agreements shall not exceed Seven Hundred Fifty Thousand Dollars ($750,000) (the “Reimbursement Cap”); whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; or (b) seek to enforce specific performance of Seller’s obligation to execute the documents required to convey the Property to Purchaser, it being understood and agreed that the remedy of specific performance shall not be handled in accordance with the provisions set forth therein, available to enforce any other obligation of Seller hereunder. Purchaser expressly waives its rights to seek damages in the event of Seller’s default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts Purchaser shall be deemed to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) elected to terminate this Agreement and receive reimbursement back the Xxxxxxx Money Deposit if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located on or before thirty (30) days following the Scheduled Closing Date. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in pursuing remedies of a breach by Seller of any of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase PriceTermination Surviving Obligations.
Appears in 1 contract
Default by Seller. Except as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in the event of default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be Closing fails to occur by reason of Seller’s default under this Agreement in a material respect or the failure of satisfaction of conditions benefiting Buyer under Section 3, which is not cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of or satisfied on or before thirty (30) days after receipt of written notice from thereof by Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer then the Escrow Deposit shall proceed be returned to Closing hereunder. IfBuyer, despite and neither party shall have any further obligation or liability to the other (other than those obligations that expressly survive a termination of this Agreement); provided, however, if the transactions hereunder shall fail to close solely by reason of Seller’s reasonable efforts to cure said Seller Defaultdefault, Seller canin a material respect, which is not cure said Seller Default cured within the thirty (30) day periodperiod set forth above in this Section 8.1, Seller may elect and Buyer is not in default in any material respect, then Buyer shall be entitled to extend (i) specifically enforce this Agreement as its sole and exclusive remedy or (ii) terminate this Agreement, in which event the Escrow Deposit shall be returned to Buyer and neither party shall have any further rights or obligations hereunder, excepting those which survive termination. As provided above in the immediately preceding clause, the Closing an additional Date shall be extended for a period of time, up to thirty (30) days, as necessary to enable Seller to cure and, if at of the end of such period Seller has not cured such default and Buyer chooses to specifically enforce this Agreement, the Closing Date for such purpose (and for any obligation to tender performance by Buyer as a condition to seeking specific performance) shall be agreed to be as of the last day of such thirty (30) day period (period. Notwithstanding the “Additional Extension”). Ifforegoing, after the Additional Extension, Seller cannot cure said Seller Default, if Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) elects to terminate this Agreement as a result of Seller’s default in a material respect or as a result of a representation and receive reimbursement warranty that was not true in a material respect as of the Exxxxxx Money (including all interest thereon)date when made and was not known by Buyer prior to the expiration of the Due Diligence Period to be untrue in a material respect, or which became materially untrue after the date when made as a result of Seller’s actions or omissions, Seller shall reimburse Buyer for its documented, reasonable out-of-pocket expenses incurred by Buyer in which event both parties shall be released connection with this transaction up to a maximum aggregate of all further liability hereunder$500,000. If as a result of any extension of the Closing Date under this Section 8.1, except for Buyer incurs or suffers any additional out-of-pocket expense on account of any rate lock, commitment extension or the obligations hereunder which expressly survive the termination like, Seller will at Closing reimburse Buyer therefor up to a maximum aggregate of this Agreement$500,000. Default By Buyer. In the event the cost that Buyer shall fail in breach of this Agreement to cure a Seller Default exceeds 2% of pay the Purchase Price or and accept the Property on the Closing Date, then the Escrow Deposit shall be delivered to Seller as full compensation and liquidated damages under this Agreement for such failure to close. Notwithstanding the foregoing, in the event that the Buyer consummates the purchase of all but the Retail Ground Lease on the Hotel and Option Closing Date and fails in breach of this Agreement to pay the Retail Purchase Price and accept the Retail Ground Lease on the Retail Closing Date, the Seller Default is of a nature that it cannot be cured, Buyer may at its option elect either to (ia) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination enforce specific performance of this Agreement or (iib) proceed receive payment of the Retail Escrow Deposit (hereinafter defined) as full compensation and liquidated damages under the Agreement for such failure to close. In connection with the foregoing, the parties recognize that Seller will incur expense in connection with the transaction contemplated by this Agreement and that the Property will be removed from the market; further, in the case of the Retail Ground Lease, that the Seller will have no adequate remedy at law in the event of Buyer’s breach; and further, that it is extremely difficult and impracticable to ascertain the extent of detriment to Seller caused by the breach by Buyer under this Agreement and the failure of the consummation of the transaction contemplated by this Agreement or the amount of compensation Seller should receive as a result of Buyer’s breach or default. The foregoing provisions of this Section 8.2 shall not limit or affect Buyer’s liability to Seller under any of Buyer’s indemnities which survive Closing hereunderor termination of the Agreement, with no abatement of, credit against respect to which Seller shall have available to it all remedies at law or reduction in the Purchase Priceequity.
Appears in 1 contract
Samples: Purchase and Sale Agreement (DiamondRock Hospitality Co)
Default by Seller. Except as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in In the event the Closing and the transactions contemplated hereby do not occur as provided herein by reason of the default by of Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase PricePurchaser may elect, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Sellersole and exclusive remedy of Purchaser, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (ia) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon)Deposit from the Escrow Agent, and in which such event both parties Seller shall be released of all further not have any other liability hereunder, except for the obligations whatsoever to Purchaser hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either other than (i) with respect to the Surviving Termination Obligations, and (ii) solely if the default by Seller is a willful failure to close or a willful misrepresentation by Seller, to require Seller to reimburse Purchaser for up to One Hundred Thousand and No/100 Dollars ($100,000.00) of Purchaser’s actual, documented, third party out-of-pocket costs and expenses associated with conducting its due diligence related to the Property (“Purchaser’s Due Diligence Costs”), or (b) enforce specific performance of Seller’s obligation to convey the Property, without adjustment to, or credit against, the Purchase Price. Purchaser shall be deemed to have elected to terminate this Agreement (as provided in subsection (a) above) if Purchaser fails to deliver to Seller written notice of its intent to file a cause of action for specific performance against Seller on or before twenty (20) days after the originally scheduled Closing Date, or having given Seller notice, fails to file a lawsuit asserting such cause of action within sixty (60) days after the originally scheduled Closing Date. Notwithstanding the foregoing, nothing contained herein shall limit Purchaser's remedies at law or in equity, as to the Surviving Termination Obligations; provided, however, (a) Purchaser shall seek only actual damages and receive reimbursement not consequential or indirect damages as a result of any default by Seller, and (b) in no event shall Seller's aggregate liability to Purchaser under this Agreement exceed an amount equal to Seller’s Liability Cap for all claims, including court costs and reasonable attorneys’ fees for enforcement, in the aggregate. If Seller’s default hereunder makes specific performance of the Exxxxxx Money Agreement unavailable (including all interest thereon)i.e., not merely impracticable or inconvenient) because Seller intentionally sold or conveyed the Property to anyone other than Purchaser (or its permitted assignee) prior to Closing in which event both parties shall be released breach of all further liability hereunderthis Agreement then, except for the obligations hereunder which expressly survive the upon termination of this Agreement or by Purchaser pursuant to subsection (iia) proceed above, in addition to Closing hereunderthe return of the Deposit and Purchaser’s Due Diligence Costs, with no abatement of, credit against or reduction anything in the Agreement to the contrary notwithstanding, Purchaser shall have the right to make demand upon Seller for reimbursement for up to the actual profit realized by Seller in selling the Property to a third party in violation of this Agreement (i.e., the difference, if any, between the net Purchase PricePrice set forth in this Agreement and the net purchase price or other consideration received by Seller in such third party sale).
Appears in 1 contract
Samples: Agreement of Purchase and Sale (RREEF Property Trust, Inc.)
Default by Seller. Except In the event the Closing and the transactions contemplated hereby do not occur as otherwise set forth herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedy, elect by notice to Seller within ten (10) Business Days following the Scheduled Closing Date, either of the following: (a) terminate this Agreement, in Section 5.3(cwhich event Purchaser will receive from the Escrow Agent the Xxxxxxx Money Deposit, together with all interest accrued thereon, and reimbursement from Seller of Purchaser’s reasonable out of pocket costs and expenses payable to third parties in connection with this transaction; provided, however, that the reimbursement by Seller to Purchaser under this Agreement shall not exceed Twelve Thousand Five Hundred Forty-six Dollars ($12,546) which matters and the aggregate reimbursement by Seller to Purchaser under this Agreement and the Other P&S Agreements shall not exceed Seven Hundred Fifty Thousand Dollars ($750,000) (the “Reimbursement Cap”); whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; or (b) seek to enforce specific performance of Seller’s obligation to execute the documents required to convey the Property to Purchaser, it being understood and agreed that the remedy of specific performance shall not be handled in accordance with the provisions set forth therein, available to enforce any other obligation of Seller hereunder. Purchaser expressly waives its rights to seek damages in the event of Seller’s default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts Purchaser shall be deemed to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) elected to terminate this Agreement and receive reimbursement back the Xxxxxxx Money Deposit if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located on or before thirty (30) days following the Scheduled Closing Date. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in pursuing remedies of a breach by Seller of any of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase PriceTermination Surviving Obligations.
Appears in 1 contract
Default by Seller. Except as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in In the event that Seller should fail to consummate the transaction contemplated by this Agreement for any reason, except as a result of Purchaser’s uncured default by Seller, Buyer shall provide written notice to Seller or the permitted termination of said default (the “Seller Default”). If the Seller Default can be cured this Agreement by Seller at an expense not or Purchaser pursuant to exceed 2% any other provision of this Agreement, or if Purchaser fails to consummate the Purchase Pricetransaction contemplated by this Agreement due to the failure of a condition precedent, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer Purchaser shall have the option to elect to sole and exclusive options of (ia) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) to terminate terminating this Agreement and receive reimbursement receiving the return of the Exxxxxx Xxxxxxx Money from Escrow Agent, (including all interest thereon)b) enforcing this Agreement through specific performance, in which event both parties shall be released of all further liability hereunder, except for or (c) waiving such default or failure and proceed to close title to the obligations hereunder which expressly survive the termination of Property pursuant to this Agreement. In the event Purchaser chooses to terminate this Agreement, Purchaser shall give Escrow Agent notice of such termination and, subject to any escrow provisions contained in this Agreement or the cost provisions of any separate escrow agreement, Escrow Agent shall refund the Xxxxxxx Money to cure a Seller Default exceeds 2% of Purchaser. Notwithstanding the Purchase Price or foregoing, in the event Purchaser terminates this Agreement as a result of an uncured material default by Seller, Seller shall reimburse Purchaser up to Seventy- Five Thousand and 00/100 Dollars ($75,000.00) for Purchaser’s actual out-of-pocket third party costs and expenses incurred by Purchaser in performing its inspections and investigations of the Seller Default is Property or otherwise in anticipation of a nature that it cannot be cured, Buyer may elect either consummating the transaction contemplated hereby (i) to terminate including sums expended in connection with the negotiation of this Agreement and receive reimbursement procurement or attempted procurement of financing). Notwithstanding the Exxxxxx Money (including all interest thereon)foregoing, in which the event both parties specific performance is not an available remedy to Purchaser due solely to the fact that Seller has intentionally caused the Property to be conveyed to a bona fide third party purchaser for value, Purchaser shall be released of have the right to take action against Seller for all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or damages available at law and in equity up to Five Million and 00/100 Dollars (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Price$5,000,000.00).
Appears in 1 contract
Default by Seller. Except as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in In the event of that Seller fails to consummate this Agreement for any reason other than Purchaser’s default hereunder, which default by Seller, Buyer shall provide written Seller is not cured within five (5) business days following notice from Purchaser to Seller of said default such default, Purchaser shall be entitled, as its sole remedy, either (a) to receive the “return of the portion of the Xxxxxxx Money applicable to the Property as to which Seller Default”). If has defaulted (less the Seller Default can Independent Consideration which shall be cured by Seller at paid to Seller) and a reimbursement of Purchaser’s actual and verified out-of-pocket costs incurred in connection with this Agreement and the transaction contemplated hereby in an expense amount not to exceed 2% the sum of Seventy-Five Thousand and 00/100 Dollars ($75,000.00) plus any deposits or other payments made by Purchaser to or for the benefit of Beneficiary in connection with 12907 Loan Assumption, which return and reimbursement shall operate to terminate this Agreement and release Seller from any and all liability hereunder (excluding liability for attorneys’ fees and other costs recoverable by Purchaser pursuant to Section 10.24 below and indemnity and other obligations which this Agreements states will survive the termination hereof), or (b) to enforce specific performance of Seller’s obligation to execute the documents required to convey the Properties to Purchaser, it being understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder; provided, further, if specific performance is not available as a remedy due to the sale of the Purchase PriceProperties by Seller to a bona fide third party purchaser other than Purchaser, Seller must cure said Seller Default. Seller shall have then for a period of thirty (30) days after receipt the date upon which Closing was to have occurred as such Closing may have been extended by Seller or Purchaser hereunder, Purchaser may seek any remedy available at law or in equity without any limitation set forth in this Agreement, including in this Section 6.2, provided that Purchaser’s damages in any such action shall be limited to the difference in the amount of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) and the purchase price paid by any bona fide third party purchaser of the Properties. Except as set forth above, Purchaser expressly waives its rights to seek damages in the event of Seller’s default hereunder which occurs prior to the Closing, other than a default by Seller under Section 5.1. Purchaser shall be deemed to have elected to terminate this Agreement and receive reimbursement back the applicable portion of the Exxxxxx Xxxxxxx Money (including all interest thereon)and due diligence costs and damages, if applicable) if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which event both parties shall be released of all further liability the Properties are located, on or before sixty (60) days following the date upon which Closing was to have occurred as such Closing may have been extended by Seller or Purchaser hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Price.
Appears in 1 contract
Samples: Agreement of Purchase and Sale and Joint Escrow Instructions (Rexford Industrial Realty, Inc.)
Default by Seller. In the event the Closing and the transactions contemplated hereby do not occur as herein provided by reason of any default of Seller, Purchaser may, as Purchaser's sole and exclusive remedy, elect by notice to Seller within ten (10) Business Days following the Scheduled Closing Date, either of the following: (a) terminate this Agreement, in which event Purchaser will receive from the Escrow Agent the Xxxxxxx Money Deposit, together with all interest accrued thereon, and in the event that the Agreement is terminated due to the willful or grossly negligent acts of Seller, Seller shall reimburse Purchaser up to $400,000 for its title, survey, consultants and reasonable attorneys fees and expenses, as documented by Purchaser, whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; or (b) seek to enforce specific performance of Seller's obligations hereunder, except that Purchaser shall not have the right to seek to enforce specific performance of those obligations of Seller which would require a subjective determination as to whether Seller has used commercially reasonable efforts, reasonable efforts, best efforts or similar standards in performing its obligations. 37 Except as otherwise set forth specifically provided in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein13.1(a), Purchaser expressly waives its rights to seek damages in the event of Seller's default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts Purchaser shall be deemed to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) elected to terminate this Agreement and receive reimbursement back the Xxxxxxx Money Deposit if Purchaser fails to advise Seller, on or before sixty (60) days following the Scheduled Closing Date or sixty (60) days following the last date to which either party had exercised an extension of the Exxxxxx Money Closing past the Scheduled Closing Date as permitted in this Agreement, that it intends to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located, and if Purchaser fails to actually file such suit within sixty (including all interest thereon)60) days after Purchaser advises Seller that it intends to file suit. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser's remedies at law, in which event both parties shall be released equity or as herein provided in pursuing remedies of all further liability hereunder, except for the obligations hereunder which expressly survive the termination a breach by Seller of this Agreement. In the event the cost to cure a Seller Default exceeds 2% any of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase PriceTermination Surviving Obligations.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty Corp)
Default by Seller. Except as otherwise set forth If Seller defaults in Section 5.3(cits obligations to sell and convey the Interests to Buyer pursuant to this Agreement, Buyer’s sole and exclusive remedy shall be to elect one of the following: (a) to terminate this Agreement, in which matters will event Buyer shall be handled in accordance with entitled to the provisions set forth thereinreturn by the Escrow Holder to Buyer of the Deposit; provided, however, in the event of default Seller Willful Default (as defined below), then, in addition to the return of the Deposit, Buyer shall be reimbursed by Seller for all of Buyer’s third party reasonable, actual and documented out-of-pocket costs and expenses (including, without limitation, reasonable attorneys’ fees and disbursements and third party due diligence costs), in an amount not to exceed $100,000.00 in the aggregate, or (b) to bring a suit for specific performance provided that any suit for specific performance must be brought as to the Interests within 30 days of the Closing Date, Buyer’s waiving the right to bring suit at any later date to the extent permitted by law. This Agreement confers no present right, title or interest in the Interests or the Property to Buyer and Buyer agrees not to file a lis pendens or other similar notice against the Real Property except in connection with, and after, the proper filing of a suit for specific performance. If specific performance is not available as remedy due to the action of Seller, Buyer shall provide written notice be deemed to Seller have chosen clause (a) of said default (the this Section 13.2. As used herein, “Seller Willful Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller ” shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite mean Seller’s reasonable efforts willful refusal to cure said Seller Defaultclose hereunder in accordance with the terms of this Agreement, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to provided either: (i) proceed specific performance is not available to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price Buyer as a remedy or (ii) (1) the reasons for Buyer’s refusal to terminate close hereunder do not include conditions beyond Seller’s control or the unmarketability of title; and (2) Purchaser has satisfied all conditions then required to be satisfied by it under this Agreement, is not otherwise in default under this Agreement and receive reimbursement is ready, willing and able to perform all of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the its obligations hereunder which expressly survive the termination of under this Agreement. In Nothing in this Section 13.2 shall (A) prevent or preclude any recovery of attorneys’ fees or other costs incurred by Buyer pursuant to Section 15.5 or (B) impair or limit the event the cost to cure a Seller Default exceeds 2% effectiveness or enforceability of the Purchase Price or indemnification obligations of Seller contained in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase PriceSection 14 hereof.
Appears in 1 contract
Samples: Membership Interest Purchase and Sale Agreement (KBS Real Estate Investment Trust II, Inc.)
Default by Seller. Except as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in In the event that Seller fails to consummate this Agreement for any reason other than Purchaser’s default hereunder or the permitted termination of default this Agreement by SellerSeller or Purchaser as herein expressly provided, Buyer Purchaser shall provide written notice be entitled, as its sole remedy, either (a) to receive (1) reimbursement from Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at Purchaser’s documented out-of-pocket third party transaction costs in an expense amount not to exceed Fifty Thousand and NO/100 Dollars ($50,000.00) and (2% ) the return of the Purchase PriceXxxxxxx Money, Seller must cure said Seller Default. Seller which return and reimbursement shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) operate to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including release Seller from any and all interest thereon), in which event both parties shall be released of all further liability hereunder, except for or (b) to enforce specific performance of Seller’s obligation to execute the obligations hereunder which expressly survive documents required to convey the termination Property to Purchaser (or, if specific performance has been made impossible or impracticable due solely as a result of this Agreement. In the event the cost to cure a Seller Default exceeds 2% Seller’s sale of the Purchase Price or Property to another purchaser, actual damages in an amount not to exceed One Million Dollars and NO/100 ($1,000,000.00)), it being understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder. Except as set forth in the preceding sentence, Purchaser expressly waives its rights to seek damages in the event the Seller Default is of a nature that it cannot Seller’s default hereunder. Purchaser shall be cured, Buyer may elect either deemed to have elected to proceed under clause (i) above if Purchaser fails to terminate file suit for specific performance (or damages, if appropriate pursuant to the terms of this Section 6.2) against Seller in a court having jurisdiction in the county and state in which the Property is located, on or before fifteen (15) days following the date upon which Closing was to have occurred. The foregoing is not intended to limit Seller’s obligations under Section 10.24 hereof. Seller acknowledges that the Property is unique in nature, notwithstanding the fact that it may be investment property. Accordingly, if Seller breaches this Agreement and receive reimbursement Purchaser seeks specific performance as a remedy, Seller shall not challenge specific performance based upon the fact that the Property is not unique in nature (including, without limitation, because the Property is or may be investment property) or because other adequate remedies may be available to Purchaser. Seller further acknowledges that Purchaser agreed to the limitations on Purchaser’s remedies set forth in this Section 6.2 in consideration of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed Seller’s agreement to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Pricenot challenge specific performance as set forth herein.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Rexford Industrial Realty, Inc.)
Default by Seller. Except In the event the Closing and the transactions contemplated hereby do not occur as otherwise set forth herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedy, elect by notice to Seller within ten (10) Business Days following the Scheduled Closing Date, either of the following: (a) terminate this Agreement, in Section 5.3(cwhich event Purchaser will receive from the Escrow Agent the Xxxxxxx Money Deposit, together with all interest accrued thereon, and reimbursement from Seller of Purchaser’s reasonable out of pocket costs and expenses payable to third parties in connection with this transaction; provided, however, that the reimbursement by Seller to Purchaser under this Agreement shall not exceed Twenty-Five Thousand Eight Hundred Thirty-Three Dollars and no/100 Cents ($25,833.00) which matters and the aggregate reimbursement by Seller to Purchaser under this Agreement and the Other P&S Agreements shall not exceed Seven Hundred Fifty Thousand Dollars ($750,000.00) (the “Reimbursement Cap”); whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; or (b) seek to enforce specific performance of Seller’s obligation to execute the documents required to convey the Property to Purchaser, it being understood and agreed that the remedy of specific performance shall not be handled in accordance with the provisions set forth therein, available to enforce any other obligation of Seller hereunder. Purchaser expressly waives its rights to seek damages in the event of Seller’s default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts Purchaser shall be deemed to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) elected to terminate this Agreement and receive reimbursement back the Xxxxxxx Money Deposit if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located on or before thirty (30) days following the Scheduled Closing Date. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in pursuing remedies of a breach by Seller of any of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase PriceTermination Surviving Obligations.
Appears in 1 contract
Default by Seller. Except If Seller fails to consummate the sale of the Property as otherwise set forth in Section 5.3(c) which matters will contemplated hereunder for any reason other than Purchaser’s default or the failure of a condition of Seller’s obligation to Closing to be handled in accordance with met or the provisions set forth therein, in the event permitted termination of default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured this Agreement by Seller at an expense not or Purchaser as herein expressly provided, Purchaser shall be entitled, as its sole remedy, either (a) to exceed 2% receive the return of the Purchase PriceXxxxxxx Money, which return shall operate to terminate this Agreement and release Seller must cure said from any and all liability hereunder, or (b) to enforce specific performance of Seller’s obligation to convey the Property to Purchaser, it being understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts Purchaser shall be deemed to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) elected to terminate this Agreement and receive reimbursement back the Xxxxxxx Money if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located, on or before sixty (60) days following the date upon which Closing was to have occurred. If specific performance would not be an effective remedy as the result of Seller’s default or as a result of a breach of a warranty or representation, Purchaser may, in lieu of specific performance (but not in lieu of the Exxxxxx Money (including all interest thereonreturn of the Xxxxxxx Money), have Seller reimburse Purchaser for all of its actual, third-party, documented costs and expenses in which event both parties shall be released of all further liability hereunder(including, except without limitation, reasonable legal fees and financing costs and fees) in connection with pursuing, negotiating and performing diligence in connection with this transaction contemplated for in this Agreement, up to Two Hundred Thousand Dollars ($200,000.00) in the obligations hereunder which expressly survive aggregate; provided, that if specified performance is unavailable because Seller has sold the termination Property to a third party in violation of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties Purchaser shall be released of all further liability hereunder, except permitted to xxx Seller for the obligations hereunder which expressly survive the termination of this Agreement direct and actual damages (but not consequential or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Pricepunitive damages).
Appears in 1 contract
Samples: Lease Agreement (Carter Validus Mission Critical REIT II, Inc.)
Default by Seller. In the event the Closing and the transactions contemplated hereby do not occur as herein provided by reason of any default of Seller, Buyer may, as Buyer’s sole and exclusive remedy under this Agreement, at law and in equity, elect by notice to Seller within 30 days following the Scheduled Closing Date, either of the following: (a) to terminate this Agreement, in which event Buyer will receive from the Escrow Agent the Xxxxxxx Money, together with all interest accrued thereon, whereupon Seller and Buyer will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations, or (b) to seek to enforce specific performance of Seller’s obligation to execute the documents required to convey the Property to Buyer as contemplated herein, it being understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder. Notwithstanding anything contained herein to the contrary, if Seller shall have intentionally taken or intentionally omitted to take any action which shall preclude the ability of Buyer to maintain an action for specific performance, then, in addition to receiving a return of Xxxxxxx Money pursuant to clause (a) above, Buyer shall be entitled to seek damages for Seller’s default, which damages shall not to exceed Five Million and No/100 Dollars ($5,000,000.00). Except as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth thereinabove, Buyer expressly waives its rights to seek damages in the event of Seller’s default by Seller, hereunder. Buyer shall provide written notice be deemed to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) elected to terminate this Agreement and receive reimbursement of back the Exxxxxx Xxxxxxx Money if Buyer fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located on or before thirty (including all interest thereon)30) days following the Scheduled Closing Date. Notwithstanding the foregoing, nothing contained herein (other than Section 8.4 hereof) will limit Buyer’s remedies at law, in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price equity or as herein provided in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement breach by Seller of any of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released Termination Surviving Obligations. Agreement of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Price.Sale and Purchase
Appears in 1 contract
Samples: Purchase and Sale Agreement (Prime Group Realty Trust)
Default by Seller. Except If Seller is in material default under any of the covenants and agreements of Seller hereunder or under the Business Park Agreement (as otherwise hereinafter defined) Purchaser may either (i) terminate Purchaser’s obligations under this Agreement and the Business Park Agreement by written notice to Seller, in which event (a) the Deposit and the Deposit under the Business Park Agreement (the “Business Park Deposit”) shall be returned to Purchaser and (b) upon Purchaser’s receipt of the Deposit and the Business Park Deposit, this Agreement shall terminate and neither party shall have any further liability hereunder except for those liabilities that expressly survive a termination of this Agreement and in the event that Seller’s default is intentional, then Seller shall reimburse Purchaser for Purchaser’s actual, third party expenses incurred in connection with Purchaser’s investigations regarding the Property and the Business Park (as hereinafter defined), in an amount not to exceed Fifty Thousand Dollars ($50,000.00) in the aggregate under this Agreement and the Business Park Agreement (Seller shall reimburse Purchaser for such amounts upon receipt of verifiable third party invoices for such expenses); or (ii) Purchaser may file an action for specific performance. Purchaser shall have no other remedy for any default by Seller. In the event of the failure of any condition precedent to Purchaser’s obligation to close expressly herein set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth thereinforth, or in the event of default the untruth or inaccuracy, in any material respect, of any Seller Representation as of the Contract Date (subject to the limitations contained in Sections 8.3 and 8.4), Purchaser’s sole remedy hereunder, at law or in equity, shall be to terminate this Agreement by Seller, Buyer shall provide delivery of written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed on or prior to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller or such sooner date as may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereonbe herein specified), in which event both parties the Deposit shall be released of all returned to Purchaser, and neither party shall have any further liability hereunder, hereunder except for the obligations hereunder which those liabilities that expressly survive the a termination of this Agreement. In Notwithstanding the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or above, in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement is terminated as set forth in this paragraph, Seller’s obligations under Section 22 hereof shall remain in full force and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Price.effect. Seller’s Initials Purchaser’s Initials
Appears in 1 contract
Default by Seller. Except If the transaction is not consummated as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in the event a result of a default by Seller, Buyer shall provide written notice then Buyer, as its sole and only remedies hereunder, to Seller the exclusion of said default (the “Seller Default”). If the Seller Default can be cured by Seller all other potential remedies under this Agreement, at an expense not to exceed 2% of the Purchase Pricelaw or in equity, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to either (i) proceed terminate this Agreement by delivery of notice of termination to Closing Seller, whereupon (A) the Xxxxxxx Money plus interest accrued thereon shall be immediately returned to Buyer, and (B) Seller shall pay to Buyer its Expense Reimbursement, in which case neither Party shall have any further rights or obligations hereunder with no abatement of, credit against or reduction in the Purchase Price other than those rights and obligations which expressly survive termination of this Agreement; or (ii) to terminate continue this Agreement pending Buyer’s action for specific performance, provided, however, that any such action for specific performance shall not include an action for damages and receive reimbursement shall be filed and served by Buyer within forty-five (45) days of the Exxxxxx Money date which is the later of (including all interest thereon)x) the termination of this Agreement by Seller, in or (y) the date on which Buyer has Actual Knowledge of the event both parties or occurrence comprising the alleged default on the part of Seller, it being the intent of the Parties hereto that any failure of Buyer to meet the time deadline set for filing shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination deemed to be Buyer’s election to waive and relinquish any rights to enforce specific performance of this Agreement. In the event Buyer files an action for specific performance in accordance with subparagraph (ii) above and Seller prevails in such action, then in addition to its obligations under Section 15(l) below, Buyer shall be obligated to pay to Seller an amount equal to the cost Specific Performance Amount as liquidated damages in order to cure compensate Seller for actual costs, damages and losses, as well as lost opportunity costs, suffered by Seller due to its inability to sell the Property to a third party pending the resolution of Buyer’s specific performance action. Buyer acknowledges that the damages suffered by Seller Default exceeds 2% due to a delay in selling the Property are difficult to determine and that the Specific Performance Amount has been agreed upon, after negotiation, as the parties’ reasonable estimate of such Seller’s damages. If the Purchase Price transaction is not consummated as a result of a default by Seller that is an intentional, willful refusal by Seller to convey the Property to Buyer for the purpose of selling the Property to a third-party (a “Willful Default”) (and no default on the part of Buyer then exists), then Buyer, as its sole and only remedies hereunder, to the exclusion of all other potential remedies under this Agreement, at law or in the event the Seller Default is of a nature that it cannot be curedequity, Buyer may elect either (i) to terminate this Agreement by delivery of notice of termination to Seller, Purchase and receive reimbursement Sale Agreement whereupon (A) the Xxxxxxx Money plus interest accrued thereon shall be immediately returned to Buyer, and (B) Seller shall pay to Buyer the sum of Two Hundred Fifty Thousand and No/100ths Dollars ($250,000) (the Exxxxxx Money (including all interest thereon“Willful Default Payment”), in which event both parties case neither Party shall be released of all have any further liability hereunder, except for the rights or obligations hereunder other than those rights and obligations which expressly survive the termination of this Agreement Agreement; or (ii) proceed waive any right to Closing hereunderthe Willful Default Payment and continue this Agreement pending Buyer’s action for specific performance as provided in, and subject to, the foregoing terms and conditions regarding any suit for specific performance brought by Buyer. THE PARTIES HAVE AGREED THAT BUYER’S ACTUAL DAMAGES, IN THE EVENT OF A WILLFUL DEFAULT BY SELLER, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. THEREFORE, BY PLACING THEIR INITIALS BELOW, THE PARTIES ACKNOWLEDGE THAT THE WILLFUL DEFAULT PAYMENT HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES’ REASONABLE ESTIMATE OF BUYER’S DAMAGES FROM A WILLFUL DEFAULT. Notwithstanding anything to the contrary in this Agreement, (i) in no event shall Seller be liable to Buyer in connection with any breach or default on the part of Seller under this Agreement for any incidental, special, exemplary, punitive or consequential damages, including, without limitation, loss of profits or revenue, interference with business operations, loss of tenants, lenders, investors, buyers, diminution in value of the Property, or inability to use the Property, and (ii) in no abatement ofevent or circumstance shall any of the members, credit against partners, employees, representatives, officers, directors, agents, advisors, property management company, affiliated or reduction in related entities of Seller or Seller’s property management company (collectively, the Purchase Price.“Seller Parties”) have any personal liability under this Agreement. Buyer’s Initials Seller’s Initials
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Realty Trust, Inc.)
Default by Seller. Except In the event the Closing and the transactions contemplated hereby do not occur as otherwise set forth herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedy, elect by notice to Seller within ten (10) Business Days following the Scheduled Closing Date, either of the following: (a) terminate this Agreement, in Section 5.3(cwhich event Purchaser will receive from the Escrow Agent the Xxxxxxx Money Deposit, together with all interest accrued thereon, and reimbursement from Seller of Purchaser’s reasonable out of pocket costs and expenses payable to third parties in connection with this transaction; provided, however, that the reimbursement by Seller to Purchaser under this Agreement shall not exceed Thirty-One Thousand Seven Hundred Sixty-Four Dollars and no/100 Cents ($31,764.00) which matters and the aggregate reimbursement by Seller to Purchaser under this Agreement and the Other P&S Agreements shall not exceed Seven Hundred Fifty Thousand Dollars ($750,000.00) (the “Reimbursement Cap”); whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; or (b) seek to enforce specific performance of Seller’s obligation to execute the documents required to convey the Property to Purchaser, it being understood and agreed that the remedy of specific performance shall not be handled in accordance with the provisions set forth therein, available to enforce any other obligation of Seller hereunder. Purchaser expressly waives its rights to seek damages in the event of Seller’s default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts Purchaser shall be deemed to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) elected to terminate this Agreement and receive reimbursement back the Xxxxxxx Money Deposit if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located on or before thirty (30) days following the Scheduled Closing Date. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in pursuing remedies of a breach by Seller of any of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase PriceTermination Surviving Obligations.
Appears in 1 contract
Default by Seller. Except If the sale of the Property is not consummated due to Seller's default hereunder, then Buyer may elect, as otherwise set forth Buyer's sole and exclusive remedy, either to: (a) terminate this Agreement and receive a refund of the Deposit and reimbursement of buyer’s actual and demonstrable out of pocket costs and expenses (including reasonable attorneys’ fees) incurred in connection with Buyer’s due diligence investigations and the negotiation and execution of this Agreement up to a maximum aggregate amount of such costs and expenses of One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00), in which event neither party shall have any further rights or obligations hereunder, except as provided in Section 5.3(c3.1(b) which matters will be handled above, and Section 9.2 and Section 9.9 below, or (b) enforce specific performance of this Agreement. Notwithstanding the foregoing and anything to the contrary in accordance with this Agreement, if the provisions set forth therein, in the event remedy of default by specific performance of this Agreement is not available due to an intentional action of Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option right to elect pursue a suit against Seller for Buyer’s actual damages (which shall not be subject to (i) proceed any limitation on Seller’s liability set forth in this Agreement). Subject to Closing the foregoing, Buyer shall not have any other rights or remedies hereunder with no abatement as a result of any default by Seller prior to Closing, and Buyer hereby waives any other such remedy as a result of a default hereunder by Seller. If Buyer is required to take any action to enforce the foregoing provisions of this Section 6.1, and Buyer is the prevailing party in such action, then Buyer shall, notwithstanding the foregoing provisions of this Section 6.1, be entitled to recover all actual out-of, credit against or reduction -pocket costs and expenses incurred by Buyer in the Purchase Price course of such enforcement, including in accordance with Section 9.5 below. Further, nothing contained in this Section 6.1 shall restrict Buyer's ability to pursue any rights or (ii) remedies it may have against Seller, nor shall it limit Seller's liability, with respect to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the those obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon)including, in which event both parties shall be released of all further liability hereunderwithout limitation, except for the Seller's indemnity obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Priceunder Section 9.2 hereof.
Appears in 1 contract
Samples: Lease Agreement (KBS Strategic Opportunity REIT II, Inc.)
Default by Seller. Except as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in In the event of default by Seller, Buyer shall provide written notice that Seller fails to Seller of said consummate this Agreement for any reason other than Purchaser’s default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon event Section 6.1 applies), then Purchaser shall be entitled, as the Seller Default has been cured by the Sellerits sole and exclusive remedy, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) to terminate this Agreement and receive reimbursement the return of the Exxxxxx Money (including all interest thereon)Xxxxxxx Money, in which event both parties Seller shall be released of from any and all further liability hereunder, except for the obligations hereunder which expressly survive ; provided that if the termination resulted from an intentional or willful act of Seller, then Seller shall pay Purchaser its Termination Costs (as hereinafter defined) upon Purchaser’s written notice to Seller that the same have become due Purchaser expressly waives its rights to seek monetary or other damages in the event of Seller’s default hereunder other than as expressly provided in the preceding sentence. Notwithstanding the foregoing, if Purchaser is ready, willing and able to close and Seller is obligated to close pursuant to the terms of this Agreement, then Purchaser shall have the right for file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located, on or before sixty (60) days following the date upon which Closing was to have occurred. In the event the cost Purchaser shall be deemed to cure have elected to waive such right to seek specific performance if it fails to file suit within such period. As material consideration to Seller’s entering into this Agreement with Purchaser, Purchaser expressly waives any right under statutory or common law or otherwise to record or file a Seller Default exceeds 2% lis pendens or a notice of pendency of action or similar notice against all of any portion of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) Property unless all conditions precedent to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) Seller’s obligation to proceed to Closing hereunderhave been satisfied and Seller defaults in its obligation to proceed to Closing. “Termination Costs” shall mean those reasonable costs actually incurred by Purchaser in connection with its investigation and efforts to purchase the Property, including, without limitation, actual reasonable fees and costs of counsel and consultants, all of which Termination Costs shall be evidenced by written documentation reasonably acceptable to Seller, but in no event shall the Termination Costs payable by Seller to Purchaser in connection with no abatement of, credit against or reduction in the Purchase Pricethis Section 6.2 exceed $500,000.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Morgans Hotel Group Co.)
Default by Seller. Except Notwithstanding any provision in this Agreement to the contrary, if Closing of the purchase and sale transaction provided for herein does not occur as otherwise set forth in Section 5.3(cherein provided (time being of the essence) which matters will be handled in accordance with the provisions set forth therein, in the event by reason of any default by SellerSeller hereunder or a default by Polish Sellers under the Polish Purchase Agreement, Buyer shall provide the Purchasers may, as their sole and exclusive remedies, elect by written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to within five (5) Business Days following the scheduled Closing hereunder. IfDate, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty either (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (iia) to terminate this Agreement and receive reimbursement of to cause their Affiliates to cause the Exxxxxx Money (including all interest thereon)Polish Purchasers to terminate the Polish Purchase Agreement, in which event both parties the Purchasers shall receive from the Escrow Agent the Escrowed Deposit and the Polish Purchasers shall receive the Polish Deposit pursuant to the Polish Purchase Agreement, whereupon Seller and the Purchasers will have no further rights or obligations under this Agreement and the Polish Sellers and Polish Purchasers will have no further rights or obligations under the Polish Purchase 24 Agreement, except those obligations that expressly survive termination hereof and the Polish Purchase Agreement, (b) proceed to Closing to the extent reasonably practicable, in which case Seller shall not be entitled to refuse to proceed to Closing unless the Purchasers are in default hereunder or any condition to Seller’s obligation to consummate the Closing pursuant to Section 3.5(b) or Section 3.5(c) is not satisfied, or (c) postpone Closing to the date which is not later than ninety (90) days following the Closing Date (but in no event beyond the Long Stop Date), and, in any event, the Purchasers (for themselves and on behalf of the Polish Purchasers) hereby waive all other remedies against Seller or the Polish Sellers or their respective Affiliates, including any claim for damages of any type or kind including consequential or punitive damages. If the Purchasers elect to postpone Closing pursuant to the provisions of this Section 3.7, the provisions of this Agreement shall apply as if references to the Closing Date are to such postponed date (provided that Purchasers shall have no further right to postpone the Closing pursuant to this Section 3.7) and time shall be released of all further liability hereunder, except the essence for the purposes of such postponed Closing. Unless otherwise expressly required pursuant to this Agreement, in no event shall Seller be obligated to undertake any of the following: (A) change the condition of the Projects or restore the same after any fire or other casualty; (B) expend money or post a bond to remove or insure over any matter encumbering title to a Project; or (C) expend any money to repair, improve or alter a Project or any portion thereof. Notwithstanding the foregoing, nothing contained in this Section 3.7(a) will limit the Purchasers’ remedies at law, in equity or as herein provided in the event of a breach by Seller of any of its obligations hereunder which expressly survive Closing or under any of the termination Closing Documents, subject to the terms and provisions of this Agreement, including Section ARTICLE IX, including Section 9.5. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereonb), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Price.
Appears in 1 contract
Default by Seller. Except In the event the Closing and the transactions contemplated hereby do not occur as otherwise set forth herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedy, elect by notice to Seller within ten (10) Business Days following the Scheduled Closing Date, either of the following: (a) terminate this Agreement, in Section 5.3(cwhich event Purchaser will receive from the Escrow Agent the Xxxxxxx Money Deposit, together with all interest accrued thereon, and reimbursement from Seller of Purchaser’s reasonable out of pocket costs and expenses payable to third parties in connection with this transaction; provided, however, that the reimbursement by Seller to Purchaser under this Agreement shall not exceed Two Hundred One Thousand Three Hundred Eighty-one Dollars ($201,381) which matters and the aggregate reimbursement by Seller to Purchaser under this Agreement and the Other P&S Agreements shall not exceed Seven Hundred Fifty Thousand Dollars ($750,000) (the “Reimbursement Cap”); whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; or (b) seek to enforce specific performance of Seller’s obligation to execute the documents required to convey the Property to Purchaser, it being understood and agreed that the remedy of specific performance shall not be handled in accordance with the provisions set forth therein, available to enforce any other obligation of Seller hereunder. Purchaser expressly waives its rights to seek damages in the event of Seller’s default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of thirty (30) days after receipt of written notice from Buyer to Seller of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts Purchaser shall be deemed to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) elected to terminate this Agreement and receive reimbursement back the Xxxxxxx Money Deposit if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located on or before thirty (30) days following the Scheduled Closing Date. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in pursuing remedies of a breach by Seller of any of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase PriceTermination Surviving Obligations.
Appears in 1 contract
Default by Seller. Except as otherwise set forth If (x) Seller shall default in Section 5.3(cany of its obligations to be performed on the Closing Date or (y) which matters will Seller shall default in the performance of any of its obligations to be handled performed prior to the Closing Date and, with respect to any default under this clause (y) only, such default shall continue for two (2) business days after notice to Seller, then Buyer's sole right and remedy (in accordance lieu of proceeding with any other legal course of conduct, the provisions set forth thereinright to bring such actions or proceedings being expressly and voluntarily waived by Buyer to the extent legally permissible, following and upon advice of its counsel, and it being expressly acknowledged by Buyer that such waiver is a material inducement to Seller entering into this Agreement) shall be, in the event sole discretion of default the Buyer, either (i) the return of the Deposit plus reimbursement by Seller, Buyer shall provide written notice to Seller of said default Buyer's actual and reasonable documented third party costs (inclusive of reasonable legal fees) , up to the “Seller Default”). If maximum aggregate amount of One Hundred Thousand and 00/100 Dollars ($100,000) or (ii) pursue an action for the Seller Default can be cured by Seller at an expense not to exceed 2% specific performance of the Purchase Price, Seller must cure said Seller Default. Seller shall have a period of this Agreement provided that Buyer initiates such proceeding no later than thirty (30) days after receipt the later of written Seller's alleged default or the Scheduled Closing Date, including the recordation or filing of a notice from Buyer to Seller of lis pendens or notice of pendency solely in connection with Buyer's action for specific performance hereunder against any portion of the Seller Default in which property. If Buyer fails to cure commence an action for specific performance within such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty (30) -day period, Seller may elect Buyer waives its rights to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer file such action and Buyer's sole remedy shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (ii) be to terminate this Agreement and receive reimbursement a return of the Exxxxxx Money Deposit under clause (including all interest thereon)i) and Buyer’s reasonable documented third party costs, in which event both parties not to exceed $100,000 as provided above. HOWEVER THAT THE PROVISIONS OF THIS SECTION 16 WILL NOT WAIVE, 9/12/2013 12:02 PM LIMIT OR AFFECT (w) BUYER’S RIGHT TO RECEIVE REIMBURSEMENT FOR REASONABLE ATTORNEYS’ FEES UNDER SECTION 24 HEREOF, (x) SELLER’S INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT, (y) BUYER’S RIGHTS AND REMEDIES ARISING UNDER OR WITH RESPECT TO SELLER’S INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT OR (z) BUYER’S RIGHTS AND REMEDIES ARISING FROM ANY BREACH OR DEFAULT BY SELLER OF ANY COVENANTS, AGREEMENTS, REPRESENTATIONS OR WARRANTIES HEREUNDER THAT SURVIVE THE CLOSING OR ARE TO BE PERFORMED FOLLOWING THE CLOSING OR ARISING FROM ANY BREACH OR DEFAULT BY SELLER UNDER THE LEASE. AS MATERIAL CONSIDERATION TO SELLER'S ENTERING INTO THIS AGREEMENT WITH BUYER, BUYER WAIVES ANY RIGHT TO RECOVER ANY PUNITIVE, CONSEQUENTIAL DAMAGES AND, PRIOR TO CLOSING, ANY OTHER DAMAGES OR MONETARY COMPENSATION OTHER THAN THE AMOUNTS IDENTIFIED Upon such cancellation, neither party shall be released of all have any further liability rights or obligations hereunder, except for rights and obligations that, pursuant to the obligations hereunder which provisions of this Agreement, are expressly made to survive the termination of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties shall be released of all further liability hereunder, except for the obligations hereunder which expressly survive the termination of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase Pricehereof.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Super Micro Computer, Inc.)
Default by Seller. Except as otherwise set forth in Section 5.3(c) which matters will be handled in accordance with the provisions set forth therein, in the event of default by Seller, Buyer shall provide written notice to Seller of said default (the “Seller Default”). If the Seller Default can be cured by Seller at an expense not to exceed 2% of the Purchase Price, Seller must cure said Seller Default. Seller shall have be in breach of any of its obligations hereunder and such breach shall remain uncured for a period of thirty three (303) business days after receipt of following written notice from thereof by Buyer (other than a breach under Paragraph 5.3 and Paragraph 6.6 hereof or otherwise a default to Seller close hereunder on the Closing Date, with respect to which no such notice and cure period shall apply), Buyer’s sole and exclusive remedy shall be to elect one of the Seller Default in which to cure such Seller Default. As soon as the Seller Default has been cured by the Seller, Buyer shall proceed to Closing hereunder. If, despite Seller’s reasonable efforts to cure said Seller Default, Seller cannot cure said Seller Default within the thirty following: (30) day period, Seller may elect to extend the Closing an additional thirty (30) day period (the “Additional Extension”). If, after the Additional Extension, Seller cannot cure said Seller Default, Buyer shall have the option to elect to (i) proceed to Closing hereunder with no abatement of, credit against or reduction in the Purchase Price or (iia) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon)Agreement, in which event both parties Buyer shall be released entitled to the return by the Title Company to Buyer of all further liability hereunderthe Xxxxxxx Money and reimbursement by Seller of its actual, except documented out-of-pocket costs in connection with the transactions contemplated hereby (inclusive of any non-refundable deposits paid by Buyer to any third party for due diligence inspections or investigations and any non-refundable financing or rate lock deposit paid by Buyer to obtain financing for the obligations hereunder which expressly survive acquisition of the termination Property), not to exceed, in any event, $125,000.00, (b) to bring a suit for specific performance provided that any suit for specific performance must be brought within 60 days of Seller’s default, to the extent permitted by law, Buyer waiving the right to bring suit at any later date or (c) if specific performance is not available or attainable solely as a result of Seller’s conveyance of the Interests or the Property or conveyance of a superior right to purchase the Interests or the Property to any person other than Buyer on or before the Closing Date, then Seller shall be liable to Buyer for actual damages (but not consequential , special, exemplary or punitive damages) caused by such action as Buyer’s sole and exclusive remedy. Buyer agrees not to file a lis pendens or other similar notice against the Interests, the Property, or any portion thereof, in any event, and the filing of this Agreement. In the event the cost to cure a Seller Default exceeds 2% of the Purchase Price or in the event the Seller Default is of a nature that it cannot be cured, Buyer may elect either (i) to terminate this Agreement and receive reimbursement of the Exxxxxx Money (including all interest thereon), in which event both parties provision shall be released deemed sufficient evidence in any court of competent jurisdiction to cause any such notice to be promptly and permanently removed of record from the Interests and/or Property. Buyer shall indemnify and hold Seller harmless from and against all further liability hereundercosts, except for the obligations hereunder which expressly survive the termination claims and expenses, including reasonable attorneys’ fees, incurred as a result of Buyer’s breach of this Agreement or (ii) proceed to Closing hereunder, with no abatement of, credit against or reduction in the Purchase PriceParagraph 8.2.
Appears in 1 contract
Samples: Membership Interest Purchase and Sale Agreement (Cottonwood Communities, Inc.)
