Breach by Seller. Seller shall be in default hereunder if: (a) any representation or warranty made by Seller is false in any material respect when made or becomes false in accordance with (ii) of Section 6.13; or (b) Seller fails to cure (within the time frame set forth below) any breach of any obligation of Seller under this Agreement. If Seller defaults on any provision hereof, Buyer, as a condition precedent to the exercise of its remedies or termination of this Agreement, shall be required to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the default, the default shall be deemed waived and this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure such default, Buyer, at Buyer’s option and as the sole and exclusive remedy of Buyer, either may: (i) terminate this Agreement, in which event (A) the Deposit shall be returned to Buyer, (B) Seller shall pay any cancellation charges of Escrow Agent, (C) Seller shall be obligated to reimburse Buyer for all out-of-pocket due diligence expenses and attorneys fees incurred by Buyer to the date of such termination, not to exceed a total of $75,000.00, and (D) Buyer shall be discharged from all duties and performance hereunder, except for any obligations which by their terms survive any termination of this Agreement; or (ii) pursue and obtain specific performance of Seller’s obligations hereunder (without the necessity of proving irreparable harm or posting any security), including to convey the Property as provided herein.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Industrial Income Trust Inc.)
Breach by Seller. In the event that Seller shall be in fail to consummate this Agreement for any reason, except Purchaser’s default hereunder if: (a) any representation or warranty made by Seller is false in any material respect when made or becomes false in accordance with (ii) of Section 6.13; or (b) Seller fails to cure (within the time frame set forth below) any breach of any obligation of Seller under this Agreement. If Seller defaults on any provision hereof, Buyer, as a condition precedent to the exercise of its remedies or termination of this AgreementAgreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof, Purchaser shall be required to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the defaultentitled, the default shall be deemed waived and this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure such default, Buyer, at Buyer’s option and as the its sole and exclusive remedy of Buyerremedy, at law or in equity, to either may: (i) terminate this Agreement, in which event (A) Agreement and receive a refund of the Deposit shall be returned to Buyer, (B) Seller shall pay any cancellation charges of Escrow Agent, (C) Seller shall be obligated to reimburse Buyer for all out-of-pocket due diligence expenses and attorneys fees incurred by Buyer to the date of such termination, not to exceed a total of $75,000.00Exxxxxx Money, and (D) Buyer neither party shall be discharged from all duties and performance hereunder, except for have any obligations which by their terms survive any termination of this Agreementfurther right or obligation hereunder other than the Surviving Obligations; or (ii) pursue and obtain the remedy of specific performance of Seller’s obligations hereunder under this Agreement; provided that any suit for specific performance must be brought within one hundred twenty (without 120) days of Seller’s default, to the necessity of proving irreparable harm or posting extent permitted by law, Purchaser waiving the right to bring suit at any security)later date. Notwithstanding the foregoing, including if Seller willfully defaults in its obligation to sell and convey the Property to Purchaser pursuant to this Agreement and the remedy of specific performance as provided hereinin clause (ii) above is not available to Purchaser because Seller has sold or conveyed the Property to another party, then Purchaser’s sole remedy shall be to proceed pursuant to clause (i) above and Seller shall pay to Purchaser the actual out-of-pocket expenses incurred by Purchaser in connection with the transactions described in this Agreement, including, without limitation, expenses paid (A) to Purchaser’s attorneys in connection with negotiation of this Agreement and matters related thereto, including, without limitation, costs associated with due diligence matters and any verifiable out-of-pocket costs incurred by Purchaser with respect to due diligence activities, including, without limitation, travel costs and expenses, (B) to Lender and/or KeyCorp as an application or loan assumption fee or other non-refundable fee, attorney fees for Lender and/or KeyCorp in connection with the Loan Assumption and any and all other fees and expenses incurred by Lender and/or KeyCorp with respect to the Loan Assumption which are payable by Purchaser, and (C) to third party consultants in connection with the performance of examinations, inspections and/or investigations pursuant to this Agreement. This Agreement 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 or in accordance with the preceding sentence. Notwithstanding any provision in this Section 8.1 to the contrary, in no event shall Seller be liable to reimburse Purchaser for costs and expenses as described in this Section 8.1 in excess of $500,000.00 in the aggregate.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Preferred Apartment Communities Inc)
Breach by Seller. Seller shall be in default hereunder if: (a) any representation or warranty made by Seller is false in any material respect when made or becomes false in accordance with (ii) of Section 6.13; or (b) In the event that Seller fails to cure (within comply with any of the time frame set forth below) material terms, conditions or obligations of this Agreement or otherwise fails to consummate this Agreement for any breach reason, except as a result of any Purchaser’s default of a material term, condition or obligation of Seller under this Agreement. If Seller defaults on any provision hereof, Buyer, as Agreement or a condition precedent to the exercise of its remedies or termination of this AgreementAgreement pursuant to another right of Purchaser to do so under the provisions hereof, shall be required to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the defaultPurchaser, the default shall be deemed waived and this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure such default, Buyer, at Buyer’s option and as the its sole and exclusive remedy of Buyer, may either may: (ia) terminate this Agreement, Agreement and receive a refund of the Xxxxxxx Money in which event (A) the Deposit shall be returned to Buyer, (B) full together with reimbursement by Seller shall pay any cancellation charges of Escrow Agent, (C) Seller shall be obligated to reimburse Buyer for all Purchaser’s actual out-of-pocket due diligence expenses and attorneys fees third party costs incurred by Buyer as part of Purchaser’s Investigations (the “Due Diligence Costs”), subject to the date of such termination, not to exceed a total cap of $75,000.0075,000 (the “Reimbursement Cap”), and (D) Buyer neither party shall be discharged from all duties and performance hereunderhave any further right or obligation hereunder other than the Surviving Obligations, except for any obligations which by their terms survive any termination of this Agreement; or (iib) pursue and obtain the remedy of specific performance of Seller’s obligations hereunder under this Agreement; provided, however, that (without i) Purchaser shall only be entitled to such remedy if (A) any such suit for specific performance is filed within sixty (60) days after Purchaser becomes aware of the necessity of proving irreparable harm or posting default by Seller, and (B) Purchaser is not in default under this Agreement; (ii) notwithstanding anything to the contrary contained herein, Seller shall not be obligated to expend any security)sums to cure any defaults under this Agreement; and (iii) if Purchaser seeks specific performance under this Agreement, including Purchaser agrees to convey accept the Property in its then “AS IS, WHERE IS” condition. Purchaser hereby agrees that prior to its exercise of any rights or remedies as provided herein.a result of any defaults by Seller, Purchaser will first deliver written notice of said default to Seller, and if Seller so elects, Seller shall have the opportunity, but not the obligation, to cure such default within ten (10) days after Seller’s receipt of such notice. In no event whatsoever shall Purchaser file any instrument of record against the title of or to the Property, except that Purchaser may solely file a lis pendens against the Property (1) simultaneously with its filing of a suit for specific performance pursuant to this Section 8.1; or (2) if Purchaser is attempting to collect from Seller the Due Diligence Costs and/or the Lender Fees in accordance with this Section 8.1 or Section 6.6(e)(ii). Notwithstanding any of the foregoing to the contrary, in no event whatsoever shall Purchaser have the right to seek money damages of any kind as a result of any default by Seller under any of the terms of this Agreement. In no event shall Seller be liable to Purchaser for, and Purchaser hereby expressly waives any and all rights to seek, any punitive, speculative, special or consequential damages. The waivers set forth in this Section 8.1 shall specifically survive the Closing or the earlier termination of this Agreement. PURCHASE AND SALE AGREEMENT Page 25 The Park at Kensington
Appears in 1 contract
Samples: Purchase and Sale Agreement (Resource Apartment REIT III, Inc.)
Breach by Seller. In the event that Seller shall be in fail to consummate the transactions contemplated by this Agreement for any reason, except Purchaser's default hereunder if: (a) any representation or warranty made by Seller is false in any material respect when made or becomes false in accordance with (ii) of Section 6.13; or (b) Seller fails to cure (within the time frame set forth below) any breach of any obligation of Seller under this Agreement. If Seller defaults on any provision hereof, Buyer, as a condition precedent to the exercise of its remedies or termination of this AgreementAgreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof, shall be required to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the defaultPurchaser, the default shall be deemed waived and this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure such default, Buyer, at Buyer’s option and as the its sole and exclusive remedy of Buyer, remedies may either may: (i) terminate this Agreement, receive a refund of the Xxxxxxx Money and Additional Deposit, if any, and pursue Seller for actual damages, provided, however, in which no event (A) shall Purchaser be entitled to a recovery or claim against Seller in excess of an amount equal to the Deposit shall be returned to Buyeramount of the Xxxxxxx Money and Additional Deposit, (B) if any, Seller shall pay any cancellation charges of Escrow Agent, (C) Seller shall not be obligated liable to reimburse Buyer for all out-of-pocket due diligence expenses and attorneys fees incurred by Buyer to the date of such termination, not to exceed a total of $75,000.00, and (D) Buyer shall be discharged from all duties and performance hereunder, except Purchaser for any obligations which by their terms survive any termination of this Agreement; punitive, speculative or consequential damages or (ii) pursue and obtain the remedy of specific performance of Seller’s 's obligations hereunder under this Agreement; provided, however that (without a) any such suit for specific performance must be filed within sixty (60) days after Purchaser becomes aware of the necessity default by Seller, (b) Purchaser is not in default under this Agreement, (c) Purchaser has tendered the Purchase Price, less Purchaser's good faith reasonable estimate of proving irreparable harm or posting any security)proration credits that would be credited against the Purchase Price, including to convey the Title Company in immediately available funds and the Title Company has acknowledged receipt of same, in writing, to Seller, and (d) Purchaser has furnished ten (10) days prior written notice to Seller of its intent and election to seek specific enforcement of this Agreement; and further provided that notwithstanding anything to the contrary contained herein if Purchaser seeks specific performance under this Agreement Purchaser agrees to accept the Property in its "WHERE IS, AS IS" condition. Purchaser hereby agrees that prior to its exercise of any right or remedies as a result of any defaults by Seller, Purchaser will first deliver written notice of said default to Seller and give Seller ten (10) days thereafter in which to cure said default, if Seller so elects. In no event whatsoever shall Purchaser file any instrument of record against title to the Property until it has complied with the provisions of (a) through (d) above. Notwithstanding any of the foregoing to the contrary, in no event whatsoever, shall Purchaser have the right to seek money damages of any kind as a result of any default by Seller under any of the terms of this Agreement except as provided for herein. In no event shall Seller be liable to Purchaser for any punitive, speculative or consequential damages. If for any reason the remedy of specific performance is denied Purchaser following all available court proceedings, or Purchaser discontinues the action for specific performance, then all funds deposited by Purchaser pursuant to (c) above shall be returned to Purchaser and the Seller shall then be released from any further liability to Purchaser in reference to this Contract but Purchaser may be liable to Seller for costs or damages as provided under this Agreement or by law.
Appears in 1 contract
Breach by Seller. In the event that Seller shall be in fail to consummate this Agreement for any reason, except Purchaser's default hereunder if: or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof, Purchaser, as its sole and exclusive remedy may either (a) terminate this Agreement and receive a refund of the Xxxxxxx Money, and neither party shall have any representation further right or warranty made by Seller is false in any material respect when made or becomes false in accordance with (ii) of Section 6.13; obligation hereunder other than the Surviving Obligations, or (b) Seller fails to cure (within pursue the time frame set forth below) any breach remedy of any obligation specific performance of Seller Seller's obligations under this Agreement. If Seller defaults on any provision hereof; provided, Buyerhowever, as a condition precedent to the exercise of its remedies or termination of this Agreement, shall be required to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the default, the default shall be deemed waived and this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure such default, Buyer, at Buyer’s option and as the sole and exclusive remedy of Buyer, either may: that (i) terminate this Agreement, in which event Purchaser shall only be entitled to such remedy if (A) any such suit for specific performance is filed within ninety (90) days after Purchaser becomes aware of the Deposit shall be returned to Buyerdefault by Seller, (B) Seller shall pay any cancellation charges of Escrow AgentPurchaser is not in default under this Agreement, (C) Seller shall be obligated Purchaser is ready, willing and able to reimburse Buyer for all out-of-pocket due diligence expenses and attorneys fees incurred by Buyer tender the Purchase Price to the date of such termination, not to exceed a total of $75,000.00Title Company in immediately available funds, and (D) Buyer shall be discharged from all duties Purchaser has furnished ten (10) days prior written notice to Seller of its intent and performance hereunder, except for any obligations which by their terms survive any termination election to seek specific enforcement of this Agreement; or and (ii) pursue notwithstanding anything to the contrary contained herein, Seller shall not be obligated to expend any sums to cure any defaults under this Agreement and obtain if Purchaser seeks specific performance of Seller’s obligations hereunder (without the necessity of proving irreparable harm or posting any security)under this Agreement, including Purchaser agrees to convey accept the Property in its "WHERE IS, AS IS" condition. Purchaser hereby agrees that prior to its exercise of any rights or remedies as provided hereina result of any defaults by Seller, Purchaser will first deliver written notice of said default to Seller, and if Seller so elects, Seller shall have the opportunity, but not the obligation, to cure such default within ten (10) days after Seller's receipt of such notice. In no event whatsoever shall Purchaser file any instrument of record against title to the Property; provided, however, Purchaser may file a lis pendens of this Agreement simultaneously with its filing of a suit for specific performance pursuant to this SECTION 8.1. Notwithstanding any of the foregoing to the contrary, in no event whatsoever shall Purchaser have the right to seek money damages of any kind as a result of any default by Seller under any of the terms of this Agreement, except in the event Purchaser prevails in its suit for specific performance pursuant to this SECTION 8.1, Purchaser shall also be entitled to pursue Seller for Purchaser's reasonable attorneys' fees and court costs incurred and directly relating to such lawsuit. In no event shall Seller be liable to Purchaser for any punitive, speculative or consequential damages.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)
Breach by Seller. In the event that Seller shall be default in default any of its Article 6 obligations hereunder if: by failing to consummate this Agreement for any reason other than as a result of (i) Purchaser's default, or (ii) a termination of this Agreement by Purchaser or Seller pursuant to an express right to do so under the provisions hereof, Purchaser, as its sole and exclusive remedy may either (a) terminate this Agreement and receive a refund of the Xxxxxxx Money (subject to Purchaser's delivery of the Reports to Seller), and neither party shall have any representation further right or warranty made by Seller is false in any material respect when made or becomes false in accordance with (ii) of Section 6.13; obligation hereunder other than the Surviving Obligations, or (b) Seller fails to cure (within pursue the time frame set forth below) any breach remedy of any obligation specific performance of Seller Seller's obligations under this Agreement. If Seller defaults on any provision hereof; provided, Buyerhowever, as a condition precedent to the exercise of its remedies or termination of this Agreement, shall be required to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the default, the default shall be deemed waived and this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure such default, Buyer, at Buyer’s option and as the sole and exclusive remedy of Buyer, either may: that (i) terminate this Agreement, in which event Purchaser shall only be entitled to such remedy if (A) any such suit for specific performance is filed within sixty (60) days after Purchaser becomes aware of the Deposit shall be returned to Buyerdefault by Seller, (B) Seller shall pay any cancellation charges of Escrow AgentPurchaser is not in default under this Agreement, (C) Seller shall be obligated to reimburse Buyer for all out-of-pocket due diligence expenses and attorneys fees incurred by Buyer Purchaser has tendered at least twenty percent (20%) of the Purchase Price to the date Title Company in immediately available funds and the Title Company has acknowledged receipt of such terminationsame, not in writing, to exceed a total of $75,000.00Seller, and (D) Buyer shall be discharged from all duties Purchaser has furnished ten (10) days prior written notice to Seller of its intent and performance hereunder, except for any obligations which by their terms survive any termination election to seek specific enforcement of this Agreement; or and (ii) pursue notwithstanding anything to the contrary contained herein, Seller shall not be obligated to expend any sums to cure any defaults under this Agreement and obtain if Purchaser seeks specific performance of Seller’s obligations hereunder (without the necessity of proving irreparable harm or posting any security)under this Agreement, including Purchaser agrees to convey accept the Property in its "WHERE IS, AS IS" condition. Purchaser hereby agrees that prior to its exercise of any rights or remedies as provided hereina result of any defaults by Seller, Purchaser will first deliver written notice of said default to Seller, and if Seller so elects, Seller shall have the opportunity, but not the obligation, to cure such default within ten (10) days after Seller's receipt of such notice. In no event whatsoever shall Purchaser file any instrument of record against title to the Property; provided, however, Purchaser may file a lis pendens of this Agreement simultaneously with its filing of a suit for specific performance pursuant to this Section 8.1. Notwithstanding any of the foregoing to the contrary, in no event whatsoever shall Purchaser have the right to seek money damages of any kind as a result of any default by Seller under any of the terms of this Agreement. In no event shall Seller be liable to Purchaser for any punitive, speculative or consequential damages.
Appears in 1 contract
Breach by Seller. If Seller shall fail to perform its covenants or agreements required to be in default performed hereunder if: and such failure shall continue for three (a3) days after written notice from Purchaser, or if any representation or warranty made by Seller is false in any material respect when made or becomes false in accordance with (ii) of Section 6.13; or (b) Seller fails to cure (within the time frame Seller's representations and warranties set forth below) any breach of any obligation of Seller under in this Agreement. If Seller defaults Agreement arc not true and correct in all material respects on any provision hereofthe date hereof or on the Closing Date, Buyer, as a condition precedent to the exercise of its remedies or termination of this Agreement, shall be required to give Seller written notice of the same. Seller Purchaser shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the default, the default shall be deemed waived and this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure such default, Buyerright, at Buyer’s option and as the its sole and exclusive remedy of Buyeroptions, either mayto either: (i) terminate this AgreementAgreement and receive a refund of the Deposit, in which event (A) and, upon receipt of the Deposit Deposit, neither party shall be returned to Buyer, (B) Seller shall pay have any cancellation charges of Escrow Agent, (C) Seller shall be obligated to reimburse Buyer for all out-of-pocket due diligence expenses and attorneys fees incurred by Buyer further rights or obligations to the date of other under this Agreement except such termination, not to exceed a total of $75,000.00, rights and (D) Buyer shall be discharged from all duties and performance hereunder, except for any obligations which by their terms as expressly survive any termination of this Agreement; or (ii) pursue and obtain specific performance of solely for Seller’s obligations hereunder (without the necessity of proving irreparable harm or posting any security), including 's failure to convey the Deed to the Property as provided hereinto Purchaser at Closing, seek specific performance for Seller's failure to convey such Deed: provided, however, (A) Purchaser shall only be entitled to specific performance if (x) any such suit for specific performance is filed within ten (10) days after the scheduled Closing Date, and (y) Purchaser is not in default of any material terms under this Agreement beyond any applicable grace, notice or cure period. For purposes of clarification, the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder. Purchaser may not seek any other remedies either at law or in equity in connection with or arising from this Agreement or the transactions contemplated hereby. In the event of a successful specific performance action by Purchaser, the full Purchase Price, less all actual and reasonable out-of-pocket expenses incurred by Purchaser in connection with such specific performance proceeding, shall be paid to Seller at the time of Closing.
Appears in 1 contract
Breach by Seller. Seller shall be in default hereunder if: (a) any representation or warranty made by Seller is false in any material respect when made or becomes false in accordance with (ii) of Section 6.13; or (b) Seller fails to cure (within the time frame set forth below) any breach of any obligation of Seller under this Agreement. If Seller defaults on any provision hereof, Buyer, as a condition precedent to the exercise of its remedies or termination of this Agreement, shall be required to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the default, the default shall be deemed waived and this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure such default, Buyer, at Buyer’s option and as the sole and exclusive remedy of Buyeroption, either may: (i) terminate this Agreement, in which event (A) Seller shall reimburse Buyer for Buyer’s actual out-of-pocket costs and expenses (including reasonable attorneys’ fees, costs and disbursements) related to the Deposit negotiation of this Agreement and the transactions contemplated hereby and Buyer’s due diligence, up to a maximum of $100,000, (B) the Deposit, less the Independent Contract Consideration (which Escrow Agent shall deliver to Seller), shall be returned to Buyer, (BC) Seller shall pay any cancellation charges of Escrow Agent, (C) Seller shall be obligated to reimburse Buyer for all out-of-pocket due diligence expenses Agent and attorneys fees incurred by Buyer to the date of such termination, not to exceed a total of $75,000.00Title Company, and (D) Buyer both parties shall be discharged from all duties and performance hereunder, except for any obligations which by their terms survive any termination of this Agreement; or OR (ii) pursue and obtain specific performance of Seller’s obligations hereunder (without the necessity of proving irreparable harm or posting any security), including to convey the Property as provided herein. If Buyer elects to pursue specific performance pursuant to this Section 13.1 but specific performance as contemplated in this Section 13.1 is unavailable to Buyer as a result of any action taken by Seller, Seller shall reimburse Buyer for Buyer’s direct and actual damages, including without limitation all of its out-of-pocket costs and expenses (including reasonable attorneys’ fees, costs and disbursements) related to the negotiation of this Agreement and the transactions contemplated hereby and Buyer’s due diligence.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Industrial Property Trust Inc.)
Breach by Seller. In the event that Seller shall be in fail to consummate this Agreement for any reason, except Purchaser’s default hereunder if: (a) any representation or warranty made by Seller is false in any material respect when made or becomes false in accordance with (ii) of Section 6.13; or (b) Seller fails to cure (within the time frame set forth below) any breach of any obligation of Seller under this Agreement. If Seller defaults on any provision hereof, Buyer, as a condition precedent to the exercise of its remedies or termination of this AgreementAgreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof, Purchaser shall be required to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the defaultentitled, the default shall be deemed waived and this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure such default, Buyer, at Buyer’s option and as the its sole and exclusive remedy of Buyerremedy, at law or in equity, to either may: (i) terminate this Agreement, in which event (A) and neither party shall have any further right or obligation hereunder other than the Deposit shall be returned to Buyer, (B) Seller shall pay any cancellation charges of Escrow Agent, (C) Seller shall be obligated to reimburse Buyer for all out-of-pocket due diligence expenses and attorneys fees incurred by Buyer to the date of such termination, not to exceed a total of $75,000.00, and (D) Buyer shall be discharged from all duties and performance hereunder, except for any obligations which by their terms survive any termination of this AgreementSurviving Obligations; or (ii) pursue and obtain the remedy of specific performance of Seller’s obligations hereunder (without under this Agreement. Notwithstanding the necessity of proving irreparable harm or posting any security)foregoing, including if Seller willfully defaults in its obligation to sell and convey the Property to Purchaser pursuant to this Agreement and the remedy of specific performance as provided hereinin clause (b) above is not available to Purchaser because Seller has sold or conveyed the Property to another party, then Purchaser’s sole remedy shall be to proceed pursuant to clause (a) above and Purchaser may recover from Seller the actual out-of-pocket expenses incurred by Purchaser in connection with the transaction described in this Agreement, including, without limitation, expenses paid (A) to Purchaser’s attorneys in connection with negotiation of this Agreement and matters related thereto, (B) to any prospective lender as an application or commitment fee, rate lock or other non-refundable fee, and (C) to unrelated and unaffiliated third party consultants in connection with the performance of examinations, inspections and/or investigations pursuant to this Agreement. If specific performance is not available as described in the immediately preceding sentence, Seller shall pay to Purchaser all actual expenses, including reasonable attorneys’ fees actually incurred, incurred by Purchaser in such specific performance action, and such expenses shall not be included as an expense of Purchaser in determining Sellers’ liability to Purchaser in the event specific performance is not an available remedy as set forth in this Section 7.1. Notwithstanding any provision in this Section 7.1 to the contrary, in no event shall Seller be liable to reimburse Purchaser for costs and expenses in excess of $50,000.00 in the aggregate. The foregoing provision of this Section 7.1 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Preferred Apartment Communities Inc)
Breach by Seller. In the event that Seller shall be in fail to consummate the sale of the Property pursuant to this Agreement for any reason (other than Purchaser’s default hereunder if: (a) any representation or warranty made by Seller is false in any material respect when made or becomes false in accordance with (ii) of Section 6.13; or (b) Seller fails to cure (within the time frame set forth below) any breach of any obligation of Seller under this Agreement. If Seller defaults on any provision hereof, Buyer, as a condition precedent to the exercise of its remedies or termination of this AgreementAgreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof), shall be required to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the defaultPurchaser, the default shall be deemed waived and this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure such default, Buyer, at Buyer’s option and as the its sole and exclusive remedy of Buyer, may either may: (a) terminate this Agreement and receive (i) terminate this Agreementa refund of the Xxxxxxx Money and (ii) if such failure to close the transactions contemplated herein results from a breach Renaissance Chicago Downtown Hotel or default of Seller hereunder (as opposed to the mere failure of Purchaser Closing Condition not due to a breach or default of Seller hereunder or the mere failure of Seller’s Closing Condition), in which event (A) the Deposit shall be returned to Buyerreimbursement of Purchaser’s actual, (B) Seller shall pay any cancellation charges of Escrow Agent, (C) Seller shall be obligated to reimburse Buyer for all reasonable out-of-pocket due diligence costs and expenses and attorneys fees incurred in connection with the transactions contemplated by Buyer to the date of such termination, not to exceed a total of $75,000.00this Agreement, and (D) Buyer neither party shall be discharged from all duties and performance hereunderhave any further right or obligation hereunder other than the Surviving Obligations, except for any obligations which by their terms survive any termination of this Agreement; or (iib) pursue and obtain the remedy of specific performance of Seller’s obligations hereunder under this Agreement; provided, however, that (i) Purchaser shall only be entitled to such remedy if (A) any such suit for specific performance is filed within sixty (60) days after Purchaser becomes aware of the default by Seller, (B) Purchaser is not in default under this Agreement, and (C) Purchaser has furnished ten (10) days prior written notice to Seller of its intent and election to seek specific enforcement of this Agreement; and (ii) notwithstanding anything to the contrary contained herein, if Purchaser seeks specific performance under this Agreement, Purchaser agrees to accept the Property in its “AS IS, WHERE IS” condition. Purchaser hereby agrees that prior to its exercise of any rights or remedies as a result of any defaults by Seller, Purchaser will first deliver written notice of said default to Seller, and if Seller so elects, Seller shall have the opportunity, but not the obligation, to cure such default within ten (10) days after Seller’s receipt of such notice. In no event whatsoever shall Purchaser file any instrument of record against title to the Property; provided, however, Purchaser may file a lis pendens of this Agreement simultaneously with its filing of a suit for specific performance pursuant to this Section 8.1. Except as expressly provided in this Agreement (including, without the necessity of proving irreparable harm or posting any securitylimitation, Section 10.10 hereof), including in no event whatsoever shall Purchaser have the right to convey seek money damages of any kind as a result of any default by Seller under any of the Property as provided hereinterms of this Agreement. In no event shall Seller be liable to Purchaser for any punitive, speculative or consequential damages.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Carey Watermark Investors Inc)
Breach by Seller. If Seller shall be in default hereunder if: (a) fail to perform any representation of its material obligations under this Agreement or warranty made by Seller is false any of the Other Purchase Agreements, in any material respect when made or becomes false in accordance with (ii) of Section 6.13; or (b) respect, prior to Closing, and Seller fails to cure such breach within ten (within the time frame set forth below10) any breach Business Days after Seller’s receipt of any obligation of Seller under this Agreement. If Seller defaults on any provision hereof, Buyer, as a condition precedent to the exercise of its remedies or termination of this Agreement, shall be required to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the default, the default shall be deemed waived and this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure Buyer specifying such default, Buyer, at Buyer’s option and as the its sole and exclusive remedy of Buyerremedy, Buyer may either may: (i) terminate this AgreementAgreement and the Other Purchase Agreements and receive a refund of the Deposit, in which event (A) the Deposit shall be returned to Buyer, (B) Seller shall pay any cancellation charges of Escrow Agent, (C) Seller shall be obligated to reimburse Buyer for all its actual third party out-of-pocket due diligence costs and expenses incurred in connection with the transactions contemplated by this Agreement and attorneys fees incurred by Buyer to the date of such termination, Other Purchase Agreements in an amount not to exceed a total of $75,000.00, and (D) Buyer shall be discharged from all duties and performance hereunder, except for any obligations which by their terms survive any termination of this Agreement; 750,000 or (ii) pursue and obtain the remedy of specific performance of Seller’s obligations hereunder under this Agreement, Seller hereby waiving any defense it may have to an action for specific performance based upon the adequacy of Buyer’s remedies at law; provided, however, that (A) Buyer shall only be entitled to the remedy of specific performance if any suit for specific performance is filed within ninety (90) days after Seller’s failure to cure the applicable breach within ten (10) Business Days as aforesaid, and (B) if Buyer seeks specific performance under this Agreement, Buyer agrees to accept the Ownership Interests and each Owner’s assets, including, without limitation, the necessity Properties, in accordance with the terms of proving irreparable harm this Agreement; provided further, that if Seller wrongfully sells a Property or posting any securityOwnership Interests in any Owner to a bona fide third party purchaser prior to Closing, such that the remedy of specific performance is not available, then, in addition to the refund of the Deposit and Seller’s payment to Buyer of its actual third party out-of-pocket costs and expenses incurred in connection with the transactions contemplated by this Agreement and the Other Purchase Agreements in an amount not to exceed $750,000, Seller shall pay to Buyer its actual damages as a result of such breach in an amount not to exceed One Million Seven Hundred Fifty Thousand Dollars ($1,750,000). Notwithstanding any of the foregoing to the contrary, including in no event whatsoever, shall Buyer have the right to convey seek money damages of any kind as a result of any default by Seller under any of the Property terms of this Agreement other than as expressly provided hereinin this Agreement, and in no event shall Seller be liable to Buyer for any punitive, speculative or consequential damages. The foregoing waiver shall not apply to claims based upon breach of representations and warranties, which are governed instead by the provisions of Section 24(c) hereof, or any claim for indemnification governed by Section 22 or Section 23(e)(i) or any of Seller’s post-closing obligations under any Transaction Document.
Appears in 1 contract
Samples: Agreement of Purchase and Sale of Ownership Interests (Pennsylvania Real Estate Investment Trust)
Breach by Seller. Seller shall be in default hereunder if: (a) any representation or warranty made by Seller is false in any material respect when made or becomes false in accordance with (ii) of Section 6.13; or (b) Seller fails to cure (within the time frame set forth below) any breach of any obligation of Seller under this Agreement. If Seller defaults on any provision hereof, Buyer, as a condition precedent to the exercise of its remedies or termination of this Agreement, shall be required to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the default, the default shall be deemed waived and this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure such default, Buyer, at Buyer’s option and as the sole and exclusive remedy of Buyeroption, either may: (i) terminate this Agreement, in which event (A) Seller shall reimburse Buyer for Buyer’s actual out-of-pocket costs and expenses (including reasonable attorneys’ fees, costs and disbursements) related to the Deposit negotiation of this Agreement and the transactions contemplated hereby and Buyer’s due diligence, up to a maximum of $50,000, (B) the Deposit, less the Independent Contract Consideration (which Escrow Agent shall deliver to Seller), shall be returned to Buyer, (BC) Seller shall pay any cancellation charges of Escrow Agent, (C) Seller shall be obligated to reimburse Buyer for all out-of-pocket due diligence expenses Agent and attorneys fees incurred by Buyer to the date of such termination, not to exceed a total of $75,000.00Title Company, and (D) Buyer both parties shall be discharged from all duties and performance hereunder, except for any obligations which by their terms survive any termination of this Agreement; or OR (ii) pursue and obtain specific performance of Seller’s obligations hereunder (without the necessity of proving irreparable harm or posting any security), including to convey the Property as provided herein. If Buyer elects to pursue specific performance pursuant to this Section 13.1 but specific performance as contemplated in this Section 13.1 is unavailable to Buyer as a result of any action taken by Seller, Seller shall reimburse Buyer for Buyer’s direct and actual damages, including without limitation all of its out-of-pocket costs and expenses (including reasonable attorneys’ fees, costs and disbursements) related to the negotiation of this Agreement and the transactions contemplated hereby and Buyer’s due diligence.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Industrial Property Trust Inc.)
Breach by Seller. By Buyer, if (i) Seller shall have breached or failed to comply with, or if there is any inaccuracy in, any of its representations, warranties, covenants or agreements in this Agreement, which such breach, failure to comply or inaccuracy (y) would result in the failure of a condition set forth in Article VIII and (z) (A) cannot be cured by the Outside Date or (B) if capable of being cured by the Outside Date, shall not have been cured within thirty (30) days following the receipt of written notice (which notice must specify in default hereunder if: reasonable detail the nature of the failure and Buyer's intention to terminate this Agreement under this Section 10.1(d) if the failure is not cured) from Buyer of such failure to perform (a) any representation or warranty made by such longer period, not to extend beyond the day immediately prior to Outside Date, during which Seller is false using reasonable best efforts to cure); provided, however, that, in any material respect when made or becomes false the case of this clause (d), Buyer is not then in accordance with (ii) of Section 6.13; or (b) Seller fails to cure (within the time frame set forth below) any breach of any obligation of Seller under representation, warranty, agreement or covenant contained in this Agreement. If Seller defaults on any provision hereof, Buyer, as Agreement such that a condition precedent to the exercise of its remedies or termination of this Agreementset forth in Article XI would not be satisfied, shall be required to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the default, the default shall be deemed waived and this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure such default, Buyer, at Buyer’s option and as the sole and exclusive remedy of Buyer, either may: (i) terminate this Agreement, in which event (A) the Deposit shall be returned to Buyer, (B) Seller shall pay any cancellation charges of Escrow Agent, (C) Seller shall be obligated to reimburse Buyer for all out-of-pocket due diligence expenses and attorneys fees incurred by Buyer to the date of such termination, not to exceed a total of $75,000.00, and (D) Buyer shall be discharged from all duties and performance hereunder, except for any obligations which by their terms survive any termination of this Agreement; or (ii) pursue and obtain specific performance if (x) all of Seller’s obligations hereunder the conditions set forth in Article IX have been satisfied or waived (without other than conditions that by their nature are to be satisfied by actions taken at the necessity Closing, each of proving irreparable harm or posting any securitywhich would be satisfied assuming the Closing would occur at such time), including Seller fails to convey consummate the Property as provided herein.transactions contemplated by this Agreement within five (5) Business Days following the date that the Closing should have occurred pursuant to Article II and Buyer was ready, willing and able to consummate the Closing during such period and Buyer has notified Seller of its intent to terminate this Agreement pursuant to this clause (ii), and (y) following such notification, Seller fails to consummate the Closing within two (2) Business Days; or
Appears in 1 contract
Samples: Purchase and Sale Agreement (Natural Resource Partners Lp)
Breach by Seller. In the event that Seller shall be in fail to consummate this Agreement for any reason, except Purchaser’s default hereunder if: (a) any representation or warranty made by Seller is false in any material respect when made or becomes false in accordance with (ii) of Section 6.13; or (b) Seller fails to cure (within the time frame set forth below) any breach of any obligation of Seller under this Agreement. If Seller defaults on any provision hereof, Buyer, as a condition precedent to the exercise of its remedies or termination of this AgreementAgreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof, Purchaser shall be required to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the defaultentitled, the default shall be deemed waived and this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure such default, Buyer, at Buyer’s option and as the its sole and exclusive remedy of Buyerremedy, at law or in equity, to either may: (i) terminate this Agreement, in which event (A) Agreement and receive a refund of the Deposit shall be returned to Buyer, (B) Seller shall pay any cancellation charges of Escrow Agent, (C) Seller shall be obligated to reimburse Buyer for all out-of-pocket due diligence expenses and attorneys fees incurred by Buyer to the date of such termination, not to exceed a total of $75,000.00Xxxxxxx Money, and (D) Buyer neither party shall be discharged from all duties and performance hereunder, except for have any obligations which by their terms survive any termination of this Agreementfurther right or obligation hereunder other than the Surviving Obligations; or (ii) pursue and obtain the remedy of specific performance of Seller’s obligations hereunder (without under this Agreement. Notwithstanding the necessity of proving irreparable harm or posting any security)foregoing, including if Seller willfully defaults in its obligation to sell and convey the Property to Purchaser pursuant to this Agreement and the remedy of specific performance as provided hereinin clause (b) above is not available to Purchaser because Seller has sold or conveyed the Property to another party, then Purchaser’s sole remedy shall be to proceed pursuant to clause (a) above and Purchaser may recover from Seller the actual out-of-pocket expenses incurred by Purchaser in connection with the transaction described in this Agreement, including, without limitation, expenses paid (A) to Purchaser’s attorneys in connection with negotiation of this Agreement and matters related thereto, (B) to any prospective lender as an application or commitment fee, rate lock or other non-refundable fee, and (C) to unrelated and unaffiliated third party consultants in connection with the performance of examinations, inspections and/or investigations pursuant to this Agreement. If specific performance is not available as described in the immediately preceding sentence, Seller shall pay to Purchaser all actual expenses, including reasonable attorneys’ fees actually incurred, incurred by Purchaser in such specific performance action, and such expenses shall not be included as an expense of Purchaser in determining Sellers’ liability to Purchaser in the event specific performance is not an available remedy as set forth in this Section 8.1. Notwithstanding any provision in this Section 8.1 to the contrary, in no event shall Seller be liable to reimburse Purchaser for costs and expenses in excess of $50,000.00 in the aggregate.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Preferred Apartment Communities Inc)
Breach by Seller. A Seller shall be in default hereunder if: (a) any representation or warranty made by such Seller is or becomes false in any material respect when made or becomes false in accordance with (ii) of Section 6.13respect; or (b) such Seller fails to cure (within the time frame set forth below) any breach of any obligation of such Seller under this Agreement. If a Seller defaults on any provision hereof, Buyer, as a condition precedent to the exercise of its remedies or termination of this AgreementAgreement as to such Seller, shall be required to give such Seller written notice of the same. Such Seller shall have 3 Business Days 7 days from the receipt of such notice to cure the default. If such Seller timely cures the default, the default shall be deemed waived and this Agreement shall continue in full force and effecteffect as to such Seller and its Property. If such default occurs prior to Closing and Seller fails to timely cure such default, Buyer, at Buyer’s option and as the sole and exclusive remedy of Buyeroption, either may: (i) terminate this AgreementAgreement as to such Seller and its Property, in which event (A) if such default is due to a Seller’s actions or breach of this Agreement, such Seller shall reimburse Buyer for Buyer’s reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees, costs and disbursements) related to the Deposit negotiation of this Agreement and the transactions contemplated hereby and Buyer’s due diligence, up to a maximum of the applicable Expense Reimbursement Amount, (B) the applicable Property Deposit, less the Independent Contract Consideration (which Escrow Agent shall deliver to such Seller), shall be returned to Buyer, (BC) such Seller shall pay any cancellation charges of Escrow AgentAgent and Title Company applicable to such Seller’s Property, (C) Seller shall be obligated to reimburse Buyer for all out-of-pocket due diligence expenses and attorneys fees incurred by Buyer to the date of such termination, not to exceed a total of $75,000.00, and (D) Buyer and such Seller shall be discharged from all duties and performance hereunderhereunder as to one another, except for any obligations which by their terms survive any termination of this AgreementAgreement and (E) this Agreement shall remain in full force and effect as to all other Properties; or OR (ii) pursue and obtain specific performance of such Seller’s obligations hereunder (without the necessity of proving irreparable harm or posting any security), ) including to convey the such Seller’s Property as provided herein. If Buyer elects to pursue specific performance pursuant to this Section 13.1 but specific performance as contemplated in this Section 13.1 is unavailable to Buyer as a result of any action taken by such Seller, such Seller shall reimburse Buyer for Buyer’s direct and actual damages arising from such Seller’s default (but not consequential damages which Seller specifically waives), including the Applicable Share of Buyer’s reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees, costs and disbursements) related to the negotiation of this Agreement and the transactions contemplated hereby and Buyer’s due diligence.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Industrial Income Trust Inc.)
Breach by Seller. In the event that Seller shall be in fail to consummate this Agreement for any reason, except Purchaser's default hereunder if: or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof, Purchaser, as its sole and exclusive remedy may either (a) terminate this Agreement and receive a refund of the Xxxxxxx Money and neither party shall have any representation further right or warranty made by Seller is false in any material respect when made or becomes false in accordance with (ii) of Section 6.13; obligation hereunder other than the Surviving Obligations, or (b) Seller fails to cure (within pursue the time frame set forth below) any breach remedy of any obligation specific performance of Seller Seller's obligations under this Agreement. If Seller defaults on any provision hereof; provided, Buyerhowever, as a condition precedent to the exercise of its remedies or termination of this Agreement, shall be required to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the default, the default shall be deemed waived and this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure such default, Buyer, at Buyer’s option and as the sole and exclusive remedy of Buyer, either may: that (i) terminate this Agreement, in which event Purchaser shall only be entitled to such remedy if (A) any such suit for specific performance is filed within sixty (60) days after Purchaser becomes aware of the Deposit shall be returned to Buyerdefault by Seller, (B) Seller shall pay any cancellation charges of Escrow AgentPurchaser is not in default under this Agreement, (C) Purchaser has tendered the Purchase Price to the Title Company in immediately available funds and the Title Company has acknowledged receipt of same, in writing, to Seller, and (D) Purchaser has furnished ten (10) days prior written notice to Seller of its intent and election to seek specific enforcement of this Agreement; and (ii) notwithstanding anything to the contrary contained herein, Seller shall not be obligated to reimburse Buyer expend any sums to cure any defaults under this Agreement and if Purchaser seeks specific performance under this Agreement, Purchaser agrees to accept the Property in its "WHERE IS, AS IS" condition. Purchaser hereby agrees that prior to its exercise of any rights or remedies as a result of any defaults by Seller, Purchaser will first deliver written notice of said default to Seller, and if Seller so elects, Seller shall have the opportunity, but not the obligation, to cure such default within ten (10) days after Seller's receipt of such notice. In no event whatsoever shall Purchaser file any instrument of record against title to the Property; provided, however, Purchaser may file a lis pendens of this Agreement simultaneously with its filing of a suit for all specific performance pursuant to this SECTION 8.1. Notwithstanding any of the foregoing to the contrary, in no event whatsoever shall Purchaser have the right to seek money damages of any kind as a result of any default by Seller under any of the terms of this Agreement. Notwithstanding the foregoing, solely in the event that the remedy of specific performance is not available to Purchaser as a result of Seller's conveyance of the Property to another third party, Purchaser shall have the right to terminate this Agreement and then pursue Seller for Purchaser's actual out-of-pocket due diligence expenses costs as evidenced by bona fide paid invoices from third parties, provided, however, in no event shall such amount exceed $50,000.00 and attorneys fees incurred by Buyer in no event shall such amount include speculative, punitive or consequential damages. In no event shall Seller be liable to the date of such termination, not to exceed a total of $75,000.00, and (D) Buyer shall be discharged from all duties and performance hereunder, except Purchaser for any obligations which by their terms survive any termination of this Agreement; punitive, speculative or (ii) pursue and obtain specific performance of Seller’s obligations hereunder (without the necessity of proving irreparable harm or posting any security), including to convey the Property as provided hereinconsequential damages.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Behringer Harvard Short Term Opportunity Fund I Lp)
Breach by Seller. In the event that Seller shall be in fail to consummate this Agreement for any reason, except Purchaser's default hereunder if: or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof, Purchaser, as its sole and exclusive remedy may either (a) terminate this Agreement and receive a refund of the Xxxxxxx Money, and neither party shall have any representation further right or warranty made by Seller is false in any material respect when made or becomes false in accordance with (ii) of Section 6.13; obligation hereunder other than the Surviving Obligations, or (b) Seller fails to cure (within pursue the time frame set forth below) any breach remedy of any obligation specific performance of Seller Seller's obligations under this Agreement. If Seller defaults on any provision hereof; provided, Buyerhowever, as a condition precedent to the exercise of its remedies or termination of this Agreement, shall be required to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the default, the default shall be deemed waived and this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure such default, Buyer, at Buyer’s option and as the sole and exclusive remedy of Buyer, either may: that (i) terminate this Agreement, in which event Purchaser shall only be entitled to such remedy if (A) any such suit for specific performance is filed within sixty (60) days after Purchaser becomes aware of the Deposit shall be returned to Buyerdefault by Seller, (B) Seller shall pay any cancellation charges of Escrow AgentPurchaser is not in default under this Agreement, (C) Purchaser has tendered the Purchase Price to the Title Company in immediately available funds and the Title Company has acknowledged receipt of same, in writing, to Seller, and (D) Purchaser has furnished ten (10) days prior written notice to Seller of its intent and election to seek specific enforcement of this Agreement; and (ii) notwithstanding anything to the contrary contained herein, Seller shall not be obligated to reimburse Buyer expend any sums to cure any defaults under this Agreement and if Purchaser seeks specific performance under this Agreement, Purchaser agrees to accept the Property in its "WHERE IS, AS IS" condition. Purchaser hereby agrees that prior to its exercise of any rights or remedies as a result of any defaults by Seller, Purchaser will first deliver written notice of said default to Seller, and if Seller so elects, Seller shall have the opportunity, but not the obligation, to cure such default within ten (10) days after Seller's receipt of such notice. In no event whatsoever shall Purchaser file any instrument of record against title to the Property; provided, however, Purchaser may file a lis pendens of this Agreement simultaneously with its filing of a suit for all specific performance pursuant to this SECTION 8.1. Notwithstanding any of the foregoing to the contrary, in no event whatsoever shall Purchaser have the right to seek money damages of any kind as a result of any default by Seller under any of the terms of this Agreement. Notwithstanding the foregoing, solely in the event that the remedy of specific performance is not available to Purchaser as a result of Seller's conveyance of the Property to another third party, Purchaser shall have the right to terminate this Agreement and then pursue Seller for Purchaser's actual out-of-pocket due diligence expenses costs as evidenced by bona fide paid invoices from third parties, provided, however, in no event shall such amount exceed $250,000.00 and attorneys fees incurred by Buyer in no event shall such amount include speculative, punitive or consequential damages. In no event shall Seller be liable to the date of such termination, not to exceed a total of $75,000.00, and (D) Buyer shall be discharged from all duties and performance hereunder, except Purchaser for any obligations which by their terms survive any termination of this Agreement; punitive, speculative or (ii) pursue and obtain specific performance of Seller’s obligations hereunder (without the necessity of proving irreparable harm or posting any security), including to convey the Property as provided hereinconsequential damages.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Behringer Harvard Short Term Opportunity Fund I Lp)
Breach by Seller. In the event that Seller shall be in fail to consummate this Agreement for any reason, except Purchaser’s default hereunder if: (a) any representation or warranty made by Seller is false in any material respect when made or becomes false in accordance with (ii) of Section 6.13; or (b) Seller fails to cure (within the time frame set forth below) any breach of any obligation of Seller under this Agreement. If Seller defaults on any provision hereof, Buyer, as a condition precedent to the exercise of its remedies or termination of this AgreementAgreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof, shall be required to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the defaultPurchaser, the default shall be deemed waived and this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure such default, Buyer, at Buyer’s option and as the its sole and exclusive remedy of Buyer, may either may: (ia) terminate this Agreement, in which event (A) Agreement and receive a refund of the Deposit shall be returned Exxxxxx Money together with reimbursement by Seller to Buyer, (B) Seller shall pay any cancellation charges Purchaser of Escrow Agent, (C) Seller shall be obligated to reimburse Buyer for all Purchaser’s actual and documented out-of-pocket due diligence costs and expenses and attorneys fees incurred by Buyer to the date of such termination, in connection with this transaction in an amount not to exceed a total of $75,000.0050,000 in the aggregate, and (D) Buyer neither party shall be discharged from all duties and performance hereunderhave any further right or obligation hereunder other than the Surviving Obligations, except for any obligations which by their terms survive any termination of this Agreement; or (iib) pursue and obtain the remedy of specific performance of Seller’s obligations hereunder under this Agreement; provided, however, that (without i) Purchaser shall only be entitled to such remedy if (A) any such suit for specific performance is filed within sixty (60) days after Purchaser becomes aware of the necessity default by Seller, (B) Purchaser is not in default under this Agreement, (C) Purchaser has tendered an amount equal to five percent (5%) of proving irreparable harm or posting any securitythe Purchase Price to the Title Company in immediately available funds and the Title Company has acknowledged receipt of same, in writing, to Seller (such funds to be administered in the same manner as the Exxxxxx Money as provided in Section 3.1), including and (D) Purchaser has furnished ten (10) days prior written notice to convey Seller of its intent and election to seek specific enforcement of this Agreement; and (ii) notwithstanding anything to the contrary contained herein, Seller shall not be obligated to expend any sums to cure any defaults under this Agreement and if Purchaser seeks specific performance under this Agreement, Purchaser agrees to accept the Property in its “AS IS, WHERE IS” condition. Purchaser hereby agrees that prior to its exercise of any rights or remedies as provided hereina result of any defaults by Seller, Purchaser will first deliver written notice of said default to Seller, and if Seller so elects, Seller shall have the opportunity, but not the obligation, to cure such default within ten (10) days after Seller’s receipt of such notice. In no event whatsoever shall Purchaser file any instrument of record against title to the Property; provided, however, Purchaser may file a lis pendens of this Agreement simultaneously with its filing of a suit for specific performance pursuant to this Section 8.1. Notwithstanding any of the foregoing to the contrary, in no event whatsoever shall Purchaser have the right to seek money damages of any kind as a result of any default by Seller under any of the terms of this Agreement, other than reimbursement of Purchaser’s actual and documented out-of-pocket costs and expenses as described above. In no event shall Seller be liable to Purchaser for any punitive, speculative or consequential damages.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Resource Real Estate Investors 7, L.P.)
Breach by Seller. Seller shall be in default hereunder if: (a) any representation or warranty made In the event the Close of Escrow and the transactions contemplated hereby do not occur as provided herein by Seller is false in any material respect when made or becomes false in accordance with (ii) of Section 6.13; or (b) Seller fails to cure (within the time frame set forth below) any breach of any obligation of Seller under this Agreement. If Seller defaults on any provision hereof, Buyer, as a condition precedent to the exercise of its remedies or termination of this Agreement, shall be required to give Seller written notice reason of the same. Seller shall have 3 Business Days from the receipt default of such notice to cure the default. If Seller timely cures the defaultSeller, the default shall be deemed waived and this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure such defaultBuyer may elect, Buyer, at Buyer’s option and as the sole and exclusive remedy of Buyer, either may: to (i) terminate this Agreement, in which event (A) Agreement and receive the Deposit from Escrow Holder, and in such event each party shall be returned to Buyer, (B) Seller shall pay released from any cancellation charges of Escrow Agent, (C) Seller shall be obligated to reimburse Buyer for all out-of-pocket due diligence expenses and attorneys fees incurred by Buyer liability to the date of such termination, not to exceed a total of $75,000.00, and (D) Buyer shall be discharged from all duties and performance other party hereunder, except for any other than with respect to those obligations which by their terms that expressly survive any termination of this Agreement; , or (ii) pursue and obtain enforce specific performance of Seller’s obligations hereunder (without the necessity of proving irreparable harm or posting any security), including obligation to convey the Property to Buyer hereunder. Buyer shall be deemed to have elected to terminate this Agreement (as provided hereinin subsection (i) above) if Buyer fails to deliver to Seller written notice of its intent to file a cause of action for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, 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 Buyer’s remedies at law or in equity, as to claims first arising following the Close of Escrow to the extent such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereof; provided, however, Buyer shall seek only actual damages and not consequential, special or indirect damages as a result of any default by Seller. Notwithstanding any provisions in this Agreement to the contrary, Seller’s maximum liability under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00).
Appears in 1 contract
Samples: Purchase and Sale Agreement And (Paladin Realty Income Properties Inc)
Breach by Seller. In the event that Seller shall be breach any of its obligations hereunder or shall fail to consummate this Agreement for any reason other than Purchaser's default or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof, and if Purchaser is not then in default hereunder if: (a) any representation or warranty made by Seller and is false in any material respect when made or becomes false in accordance with (ii) of Section 6.13; or (b) ready, willing and able to consummate this transaction, then, if Seller fails to cure such default with five (within 5) days after Purchaser gives Seller written notice of such default, Purchaser shall have the time frame right to pursue one, but not all of the following, as its sole and exclusive remedies: (i) the right to terminate this Agreement and receive a refund of the Xxxxxxx Money and any Extension Fee paid to Seller upon Purchaser's satisfaction of the requirements set forth belowin Section 10.12 of this Agreement, or (ii) any breach by giving written notice to Seller within ninety (90) days after the scheduled Closing Date and filing a lawsuit within one hundred twenty (120) days after the scheduled Closing Date, the right to seek specific performance of any obligation Seller's obligations to sell the Property in accordance with the terms of the Agreement. In the event Purchaser fails to give written notice to Seller under within such 90-day period or file a lawsuit for specific performance within such 120-day period, Purchaser shall be deemed to have elected the remedy of termination of this Agreement. If Seller defaults on any provision hereof, Buyer, as Purchaser enforces specific performance of Seller's obligations to sell the Property in accordance with the terms of this Agreement Purchaser agrees that it shall accept a condition precedent special warranty deed to the exercise Property subject to the Permitted Encumbrances. In no event shall Seller be liable to Purchaser for any actual, punitive, exemplary, speculative, or consequential, or other damages. In the event the remedy of its remedies specific performance is not available Purchaser because Seller has intentionally conveyed the Property to a third party or termination of this Agreement, shall intentionally and voluntarily encumbered the Property with a lien that cannot be required to give Seller written notice released by applying the proceeds of the same. Seller shall have 3 Business Days from the receipt of such notice Purchase Price to cure the default. If Seller timely cures the defaultbe paid by Purchaser to Seller, the default shall be deemed waived and this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure such default, Buyer, at Buyer’s option and as the sole and exclusive remedy of Buyer, either may: (i) terminate this Agreement, in which event (A) the Deposit shall be returned to Buyer, (B) Seller shall pay any cancellation charges of Escrow Agent, (C) Seller shall be obligated to reimburse Buyer Purchaser may seek recovery for all its actual out-of-pocket due diligence expenses and attorneys fees incurred by Buyer to costs of investigating the date of such termination, Property in an amount not to exceed a total of $75,000.00, and (D) Buyer shall be discharged from all duties and performance hereunder, except for any obligations which by their terms survive any termination of this Agreement; or (ii) pursue and obtain specific performance of Seller’s obligations hereunder (without the necessity of proving irreparable harm or posting any security), including to convey the Property as provided herein50,000.00.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Republic Realty Fund I)
Breach by Seller. Subject to Section 8.3 below, if Seller shall be does not timely sell the Property to Purchaser in default hereunder if: breach of Seller’s obligations under this Agreement, then (a) any representation or warranty made by Seller is false in any material respect when made or becomes false in accordance with (ii) of Section 6.13; or (b) Seller fails to cure (within the time frame set forth below) any breach of any obligation of Seller under this Agreement. If Seller defaults on any provision hereof, Buyer, as a condition precedent to the exercise of its remedies or termination of this Agreement, Purchaser shall be required entitled to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the default, the default shall be deemed waived and this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure such default, Buyer, at Buyer’s option and as the sole and exclusive remedy of Buyer, either may: (i) terminate this Agreement, in which event (A) pursue the Deposit shall be returned to Buyer, (B) Seller shall pay any cancellation charges remedy of Escrow Agent, (C) Seller shall be obligated to reimburse Buyer for all out-of-pocket due diligence expenses and attorneys fees incurred by Buyer to the date of such termination, not to exceed a total of $75,000.00, and (D) Buyer shall be discharged from all duties and performance hereunder, except for any obligations which by their terms survive any termination of this Agreement; or (ii) pursue and obtain specific performance of Seller’s obligations under this Agreement in accordance with applicable law, provided that Purchaser files in a court of competent jurisdiction and serves on Seller a complaint for a specific performance action within ninety (90) days of the date on which Purchaser first becomes aware of Seller’s default, except that, in the event specific performance for any reason is not available, then Purchaser shall be entitled to recover damages from Seller as described in Section 8.1(ii) below, or (ii) terminate this Agreement, receive a refund of the Xxxxxxx Money, and pursue an action against Seller to recover damages incurred by Purchaser and/or any affiliates of Purchaser in connection with the transaction contemplated by this Agreement and (b) in addition to the foregoing remedies, if Purchaser is not in material breach of its obligations under this Agreement and Seller, directly or indirectly, sells the Property for a purchase price in excess of the Purchase Price within a period of one (1) year following the date of the above default by Seller (including by virtue of the direct or indirect transfer of ownership interests in Seller), then Seller shall be obligated to pay any such excess amount to Purchaser, less the escrow, title, closing, reasonable attorneys fees, and other reasonable and customary third party costs of such sale, in cash, as damages for Seller’s default hereunder (without the necessity “Excess Sale Amount”). Anything to the contrary in any of proving irreparable harm the Sale Documents notwithstanding, to the fullest extent permitted by applicable law, whether or posting not the Closing shall have occurred (I) under no circumstances shall Purchaser be entitled to any securitydamages in excess of Three Hundred Fifty Thousand and no/100 Dollars ($350,000.00) (the “Damages Ceiling;” which Damages Ceiling shall not be deemed to include any portion of the Punchlist Escrowed Funds), including to convey provided, however, that if Seller does not timely sell the Property to Purchaser in breach of Seller’s obligations under this Agreement and, further, the circumstances described in clause (b) of the immediately preceding paragraph shall have occurred, the Damages Ceiling shall not limit the Excess Sale Amount and (II) Purchaser shall not assert, and Purchaser hereby waives and acknowledges that Purchaser shall have no claim against Seller on any theory of liability for, special, indirect, consequential, or punitive damages or lost profits (as provided herein.opposed to direct, compensatory damages). The parties have read and understand the provisions of this Section 8.1 and by their signatures immediately below agree to be bound by its terms. The terms and provisions of this Section 8.1 shall expressly survive Closing and the termination of this Agreement. SELLER: PURCHASER:
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust IV, Inc.)
Breach by Seller. If Seller shall (i) breaches any of its obligations hereunder to be in default hereunder if: (a) any representation or warranty made performed by Seller is false it in any material respect when made respects prior to the Closing Date, or becomes false in accordance with (ii) of Section 6.13; or (b) Seller fails to cure (within defaults in the time frame set forth below) any breach performance of any obligation of Seller under this Agreement. If Seller defaults its obligations to be performed by it in any material respects on any provision hereofthe Closing Date, BuyerPurchaser shall be entitled, as a condition precedent to the exercise of its remedies or termination of this Agreement, shall be required to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the default, the default shall be deemed waived and this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure such default, Buyer, at Buyer’s option and as the sole and exclusive remedy of Buyerremedy, at law or in equity, to either may: (i) terminate this AgreementAgreement and receive a refund of the Xxxxxxx Money, in which event (A) the Deposit shall be returned to Buyer, (B) and Seller shall pay any cancellation charges of Escrow Agent, (C) Seller shall be obligated to reimburse Buyer Purchaser for all out-of-pocket due diligence expenses and attorneys fees Pursuit Costs incurred by Buyer to the date of such termination, Purchaser in connection with this transaction in an amount not to exceed a total of Two Million Dollars ($75,000.002,000,000), and (D) Buyer whereupon neither party shall be discharged from all duties and performance hereunder, except for have any obligations which by their terms survive any termination of this Agreementfurther right or obligation hereunder other than the Surviving Obligations; or (ii) pursue and obtain the remedy of specific performance of Seller’s obligations hereunder under this Agreement; provided that any suit for specific performance must be brought within ninety (without 90) days of Seller’s default, to the necessity extent permitted by law, Purchaser waiving the right to bring suit at any later date. Notwithstanding the foregoing, in the event Seller intentionally conveys any portion of proving irreparable harm the Property to a third party prior to the earlier of (x) the termination of this Agreement pursuant to the terms hereof or posting any security(y) ninety (90) days following the date that Closing is otherwise required to occur under this Agreement (provided no action for specific performance has then been initiated by Purchaser), including thereby making the remedy of specific performance unavailable to convey Purchaser, Purchaser shall be permitted to pursue all other rights and remedies which may be available to it at law or in equity on account of a breach of Seller’s obligations herein. This Agreement confers no present right, title or interest in the Property as provided hereinto Purchaser, and Purchaser agrees not to file a lis pendens or other similar notice against the Property except in connection with the enforcement of its rights under this Section 8.1.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Preferred Apartment Communities Inc)
Breach by Seller. If Seller shall be in default hereunder iffails to consummate this Agreement for any reason, except due to: (a) any representation or warranty made by Seller is false in any material respect when made or becomes false in accordance with (ii) of Section 6.13; Buyer’s default or (b) a termination of this Agreement by Buyer or Seller fails pursuant to cure (within a right to do so under the time frame set forth below) any breach of any obligation of Seller under this Agreement. If Seller defaults on any provision provisions hereof, Buyer, as a condition precedent Buyer shall be entitled to: (i) waive such failure and proceed to the exercise of its remedies Closing with no reduction in the Purchase Price; provided, however, that this provision will not limit Buyer’s right to receive reimbursement for attorney’s fees pursuant to Section 9.10 below in connection with any legal proceedings instituted by either party or termination Escrow Holder with respect to the enforcement of this Agreement, shall be required to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the default, the default shall be deemed waived and nor waive or affect Seller’s indemnity obligations under this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure such default, Buyer, at or Buyer’s option and as rights to enforce those indemnity obligations, nor waive or affect any of Seller’s other obligations under this agreement to be performed after the sole and exclusive remedy Closing or Buyer’s rights to enforce those obligations; (ii) pursue within six (6) months of Buyer, either may: (i) terminate this Agreement, in which event (A) Closing an action for specific performance to cause Seller to convey the Deposit shall be returned Property to Buyer, (B) Seller shall pay any cancellation charges of Escrow Agent, (C) Seller shall be obligated to reimburse Buyer for all out-of-pocket due diligence expenses and attorneys fees incurred by Buyer pursuant to the date of such termination, not to exceed a total of $75,000.00, terms and (D) Buyer shall be discharged from all duties and performance hereunder, except for any obligations which by their terms survive any termination conditions of this Agreement; or (iiiii) pursue terminate this Agreement by notice to Seller and obtain specific performance Escrow Holder to that effect, to recover the full amount of the Xxxxxxx Money and all earnings thereon and Seller; provided, however in the event of a willful or intentional default by Seller, Seller shall also pay Buyer all of Buyer’s actual and reasonable third party out of pocket costs associated with its investigation of the Property and negotiation of the transaction contemplated in this Agreement, in an amount not to exceed $50,000.00. Buyer expressly waives its rights to seek damages other than those stated in this Section 8.1 in the event of Seller’s obligations hereunder (without the necessity of proving irreparable harm or posting any security), including to convey the Property as provided hereindefault hereunder.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cottonwood Communities, Inc.)
Breach by Seller. If Seller shall fail to fully and timely perform any of its obligations hereunder for any reason except Purchaser’s default, Purchaser shall have the following remedies, which shall be in default hereunder ifPurchaser’s sole and exclusive remedies: (a) any representation or warranty made by Seller is false in any material respect when made or becomes false in accordance with (ii) to terminate this Contract and receive a return of Section 6.13; the Exxxxxx Money Deposit and all interest accrued thereon or (b) Seller fails to cure (within the time frame set forth below) any breach of any obligation of Seller under this Agreement. If Seller defaults on any provision hereof, Buyer, as a condition precedent to the exercise of its remedies or termination of this Agreement, shall be required to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the default, the default shall be deemed waived and this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure such default, Buyer, at Buyer’s option and as the sole and exclusive remedy of Buyer, either may: (i) terminate this Agreement, in which event (A) the Deposit shall be returned to Buyer, (B) Seller shall pay any cancellation charges of Escrow Agent, (C) Seller shall be obligated to reimburse Buyer for all out-of-pocket due diligence expenses and attorneys fees incurred by Buyer to the date of such termination, not to exceed a total of $75,000.00, and (D) Buyer shall be discharged from all duties and performance hereunder, except for any obligations which by their terms survive any termination of this Agreement; or (ii) pursue and obtain seek specific performance of Seller’s obligations hereunder (without hereunder. Notwithstanding the necessity of proving irreparable harm or posting any security)foregoing, including if Seller defaults under this Contract because it is unable to convey the Property subject to only the Permitted Exceptions due to the existence of any other exception to title to the Property, then Purchaser’s only remedies shall be the right to (i) terminate this Contract and receive a return of the Exxxxxx Money Deposit and all interest accrued thereon or (ii) waive such exception or failure, as applicable, and proceed with the purchase contemplated herein. Purchaser expressly agrees that it shall have no right to seek damages or any other action at law or in equity, and waives its rights, if any, with respect to this transaction under any applicable law. Failure to give notice of intent to specifically enforce this Contract on or before the date which is thirty (30) days after the Outside Closing Date shall constitute an election by Purchaser to (and shall automatically) terminate this Contract, but only in the event of Seller’s breach. Purchaser shall be deemed to have elected to terminate this Contract and receive a return of the Exxxxxx Money Deposit and all interest accrued thereon 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 a date which is sixty (60) days after the Outside Closing Date. In no event shall any damages, rights or remedies for Seller’s pre-Closing breach of this Contract be collectible, enforceable or available to Purchaser other than as provided hereinin this paragraph.
Appears in 1 contract
Samples: Earnest Money Contract and Agreement (Nuvasive Inc)
Breach by Seller. Seller shall be in In the event of a default hereunder if: (a) any representation or warranty made by Seller is false in any material respect when made or becomes false in accordance with (ii) of Section 6.13; or (b) Seller fails to cure (within the time frame set forth below) any breach of any obligation of Seller under this Agreement. If Seller defaults on any provision hereofhereunder, Buyer, as a condition precedent to the exercise of its remedies or termination of this Agreement, Purchaser shall be required to give Seller written notice of such default (not more than ten (10) days after Purchaser acquires knowledge of such default; provided no notice shall be required for Seller’s failure to proceed to Closing on the same. Closing Date) and if Seller shall have 3 Business Days from the has not cured such event of default within ten (10) days following Seller’s receipt of such default notice (or such additional time as reasonably necessary in the event such default cannot be cured within such ten (10) day period and Seller promptly commences to cure the default. If Seller timely cures same and diligently prosecutes the defaultsame to completion) (and to the extent the Closing Date is less than ten (10) days after such notice, the default shall Closing Date will be deemed waived and this Agreement shall continue in full force and effect. If re-scheduled to the next business day immediately following the expiration of such default occurs prior to Closing and Seller fails to timely cure such defaultperiod), Buyer, at Buyer’s option and then Purchaser as the its sole and exclusive remedy of Buyer, either mayshall be entitled to either: (i) terminate seek specific performance of this Agreement, but not damages, in which event a court of competent jurisdiction (A) the Deposit shall be returned to Buyer, (B) Seller shall pay any cancellation charges of Escrow Agent, (C) Seller shall be obligated to reimburse Buyer for all out-of-pocket due diligence expenses and attorneys fees incurred by Buyer to the date provided an action is commenced no later than 60 days after Purchaser became aware of such terminationdefault), not to exceed a total of $75,000.00, and (D) Buyer shall be discharged from all duties and performance hereunder, except for any obligations which by their terms survive any termination of this Agreement; or (ii) pursue terminate this Agreement and obtain receive back the Deposit plus any accrued interest and the parties shall thereafter have no further rights or obligations pursuant to this Agreement except those obligations that expressly survive such termination. If Purchaser fails to give Seller notice of any such default and proceeds with Closing, then Purchaser shall have waived its rights to assert any claim for the applicable default. The parties agree that Purchaser’s actual damages would be difficult or impossible to determine if Seller defaults and the ownership of the Property has a unique value to Purchaser which is not adequately capable of being compensated through the payment of damages. Therefore, it is specifically acknowledged and agreed that Purchaser shall be entitled to the remedy of specific performance in connection with any such default, in the event Purchaser elects to pursue such remedy as herein provided. Notwithstanding any of the foregoing, in the event of a willful default by Seller’s obligations hereunder (without the necessity of proving irreparable harm or posting any security), including said willful default being solely defined as Seller refusing to convey the Property as to Purchaser by the Closing Date in accordance with this Agreement or any willful default by Seller of Section 7 of this Agreement, Purchaser shall be entitled to the following remedies in addition to the available remedy of specific performance: (a) receive the return of its Deposit plus any accrued interest from the Escrow Agent, and (b) upon the presentment of the appropriate documentation to Seller, receive from Seller Purchaser’s Out-of-Pocket Expenses, up to a maximum amount not to exceed One Hundred Fifty Thousand ($150,000.00) Dollars, provided hereinthat Purchaser commences any such claim described above within thirty (30) days of Seller’s willful default.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Behringer Harvard Reit I Inc)
Breach by Seller. In the event that Seller shall be in default hereunder if: (a) fail to consummate this Agreement for any representation reason, except for a Purchaser default, or warranty made by Seller is false in any material respect when made or becomes false in accordance with (ii) of Section 6.13; or (b) Seller fails to cure (within the time frame set forth below) any breach of any obligation of Seller under this Agreement. If Seller defaults on any provision hereof, Buyer, as a condition precedent to the exercise of its remedies or termination any right to terminate this Agreement that Seller has under the express terms of this Agreement, Purchaser shall be required to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the default, the default shall be deemed waived and this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure such default, Buyer, at Buyer’s option and entitled as the its sole and exclusive remedy of Buyerremedies, at law or in equity, to either may: (i) terminate this Agreement, in which event (A) Agreement and receive a refund of the Deposit shall be returned to Buyer, (B) Seller shall pay any cancellation charges of Escrow Agent, (C) Seller shall be obligated to reimburse Buyer for all out-of-pocket due diligence expenses and attorneys fees incurred by Buyer to the date of such termination, not to exceed a total of $75,000.00Xxxxxxx Money, and (D) Buyer thereafter neither party shall be discharged from all duties and performance hereunder, except for have any further obligations which by their terms survive any termination of this Agreementhereunder other than the Surviving Obligations; or (ii) pursue and obtain the remedy of specific performance of Seller’s obligations hereunder under this Agreement; provided, however, that if Seller’s failure to consummate this Agreement is due to Seller’s Wrongful Acts (without defined below) and Purchaser elects to terminate this Agreement, or the necessity remedy of proving irreparable harm specific performance of Seller’s obligations under this Agreement is not available, then Purchaser shall receive a refund of the Xxxxxxx Money and Seller shall reimburse Purchaser the amount of Purchaser’s actual costs and expenses incurred in connection with (a) negotiating this Agreement, (b) conducting its due-diligence inspection and analysis of the Property, and (c) obtaining (or posting any securityattempting to obtain) debt and/or equity financing for Purchaser’s acquisition of the Property which in the aggregate shall not exceed One Hundred Thousand and No/100 Dollars ($100,000.00) (“Purchaser’s Costs”), including within ten (10) days after submission by Purchaser to convey Seller of invoices reasonably supporting such costs. It shall be a condition to Purchaser’s right to seek or obtain specific performance that that Purchaser must file suit for specific performance within ninety (90) days following the Property as date provided hereinin this Agreement for Closing (failing which Purchaser shall have waived the right to do so). As used in this Agreement, “Seller’s Wrongful Act” means an intentional affirmative act or failure to act by Seller constituting fraud, gross negligence or willful misconduct.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Nuveen Global Cities REIT, Inc.)
Breach by Seller. In the event that Seller shall be in fail to consummate this Agreement for any reason, except Purchaser’s default hereunder if: or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof, Purchaser, as its sole and exclusive remedy may either (a) terminate this Agreement and receive a refund of the Xxxxxxx Money, and neither party shall have any representation further right or warranty made by Seller is false in any material respect when made or becomes false in accordance with (ii) of Section 6.13; obligation hereunder other than the Surviving Obligations, or (b) Seller fails to cure (within pursue the time frame set forth below) any breach of any obligation of Seller under this Agreement. If Seller defaults on any provision hereof, Buyer, as a condition precedent to the exercise of its remedies or termination of this Agreement, shall be required to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the default, the default shall be deemed waived and this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure such default, Buyer, at Buyer’s option and as the sole and exclusive remedy of Buyer, either may: (i) terminate this Agreement, in which event (A) the Deposit shall be returned to Buyer, (B) Seller shall pay any cancellation charges of Escrow Agent, (C) Seller shall be obligated to reimburse Buyer for all out-of-pocket due diligence expenses and attorneys fees incurred by Buyer to the date of such termination, not to exceed a total of $75,000.00, and (D) Buyer shall be discharged from all duties and performance hereunder, except for any obligations which by their terms survive any termination of this Agreement; or (ii) pursue and obtain specific performance of Seller’s obligations hereunder under this Agreement; provided, however, that (without i) Purchaser shall only be entitled to such remedy if (A) any such suit for specific performance is filed within sixty (60) days after Purchaser becomes aware of the necessity default by Seller, (B) Purchaser is not in default under this Agreement beyond any applicable notice and cure period, (C) Purchaser has tendered an amount equal to three percent (3%) of proving irreparable harm or posting the Purchase Price to the Title Company in immediately available funds and the Title Company has acknowledged receipt of same, in writing, to Seller, and (D) Purchaser has furnished ten (10) days prior written notice to Seller of its intent and election to seek specific enforcement of this Agreement; and (ii) notwithstanding anything to the contrary contained herein, Seller shall not be obligated to expend any security)sums to cure any defaults under this Agreement and if Purchaser seeks specific performance under this Agreement, including Purchaser agrees to convey accept the Property in its “AS IS, WHERE IS” condition Purchaser hereby agrees that prior to its exercise of any rights or remedies as provided hereina result of any defaults by Seller, Purchaser will first deliver written notice of said default to Seller, and if Seller so elects, Seller shall have the opportunity, but not the obligation, to cure such default within ten (10) days after Seller’s receipt of such notice. In no event whatsoever shall Purchaser file any instrument of record against title to the Property; provided, however, Purchaser may file a lis pendens of this Agreement simultaneously with its filing of a suit for specific performance pursuant to this Section 8.1. Notwithstanding any of the foregoing to the contrary, in no event whatsoever shall Purchaser have the right to seek money damages of any kind as a result of any default by Seller under any of the terms of this Agreement. In no event shall Seller be liable to Purchaser for any punitive, speculative or consequential damages.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Global Growth Trust, Inc.)
