Seller Pre-Closing Defaults. In the event that on the Closing Date Seller has defaulted on its material obligations hereunder in any material respect, and provided that Purchaser was ready, willing, and able to consummate Closing on the Closing Date and was not in breach in any material respect of this Agreement, then, Purchaser shall be entitled, as its sole and exclusive remedy, provided that Purchaser is not then in default under this Agreement beyond any applicable notice and cure period, and Purchaser hereby waives its right to pursue any other remedy at law or in equity, to either: (a) treat this Agreement as being in full force and effect and pursue only the remedy of specific performance of the Seller’s obligations to deliver the documents described in Sections 21(a) and 21(c) hereof; or (b) terminate this Agreement and receive a return of the Deposit (and the parties shall jointly instruct the Escrow Agent to promptly return to Purchaser the Deposit) and the reasonable out-of-pocket costs and expenses incurred by Purchaser in conducting its due diligence investigations, negotiating this Agreement, preparing for Closing and in obtaining the return of the Deposit, up to, but not more than, $200,000. If the default by Seller of its obligation to close under this Agreement shall result from the act of Seller to sell the Property to a third party and provided that Purchaser is not then in default beyond any applicable notice and cure period,, Purchaser shall be entitled to receive a return of the Deposit (and the parties shall jointly instruct the Escrow Agent to promptly return to Purchaser the Deposit) and Seller shall (i) reimburse the reasonable out-of-pocket expenses incurred by Purchaser in conducting its due diligence investigations, negotiating this Agreement, preparing for Closing and obtaining the return of the Deposit, up to, but not more than, $200,000, and (ii) agree not to execute a letter of intent or agreement to sell the Property to a third party unrelated to Seller for a period of twelve months following the Effective Date. As a condition precedent to Purchaser’s exercising any right it may have to bring an action for specific performance hereunder, Purchaser must commence such action for specific performance within twenty (20) days after the date scheduled for Closing and provide reasonably sufficient evidence to Seller that Purchaser is ready, willing, and able to consummate Closing, including without limitation evidence of its ability to fund the Purchase Pric...
Seller Pre-Closing Defaults. (a) In the event that any Seller has defaulted in any material respect under this Agreement with respect to its obligations hereunder (a “Defaulting Seller”), and provided that Buyer was not in breach in any material respect of this Agreement, then, subject to the provisions set forth in Section 14.3, Buyer shall be entitled, as its sole and exclusive remedy, and Buyer hereby waives its right to pursue any other remedy at law or in equity, to either: (i) treat this Agreement as being in full force and effect and pursue only the remedy of specific performance of the Defaulting Sellers’ obligations to deliver the documents described in Section 13.1(a) hereof; or (ii) terminate this Agreement either (1) solely with respect to the Defaulting Seller and the Individual Property to which such default relates or (2) with the entire specific Portfolio in which the Property is located, and receive a return of a pro rata portion of the Deposit as shown on Schedule 2.1(a), together with any interest earned thereon (and the parties shall jointly instruct Escrow Holder to promptly return to Buyer such pro rata portion of the Deposit shown on Schedule 2.1(a), together with any interest earned thereon). In the event that either (i) the Seller has defaulted in any material respect under the Company Agreement, and provided that Buyer was not in breach in any material respect of the Company Agreement, or (ii) if Seller shall have defaulted in any material respect under the 4807 Agreement and has not terminated the Option and removed the same of record, and Buyer is not in breach in any material respect of the 4807 Agreement, Buyer may exercise its remedy set forth in Section 14.2(a)(ii)(2) above. As a condition precedent to Buyer’s exercising any right it may have to bring an action for specific performance hereunder, Buyer must commence such action for specific performance within thirty (30) days after the date scheduled for the applicable Closing. Buyer agrees that its failure to timely commence such an action for specific performance within such thirty (30) day period shall be deemed a waiver by it of its right to commence an action for specific performance as well as a waiver by it of any right it may have to file or record a notice of lis pendens or notice of pendency of action or similar notice against any portion of the Property. In no case shall Buyer seek punitive damages or consequential damages. It is understood that a default with respect to one Seller or its Ind...
Seller Pre-Closing Defaults. 18.2.1 In the event that Seller shall default under this Agreement in any material respect, then Purchaser shall be entitled, as its sole remedy, to either: (i) terminate this Agreement and receive (A) the immediate return of the Deposit, and (B) prompt reimbursement or payment by Seller of all of Purchaser’s third-party, out-of-pocket, documented costs and expenses actually incurred in connection with Purchaser’s due diligence for the transactions contemplated hereby and any reasonable, third-party, out-of-pocket, documented capital markets costs (including forfeited loan deposits, lender legal fees, loan fees, breakage and hedging costs), not to exceed ONE MILLION AND NO/100 DOLLARS ($1,000,000.00) in the aggregate, and Seller shall not have any further liability or obligation to Purchaser hereunder nor shall Purchaser have any further liability or obligation to Seller hereunder, except for such obligations of the parties respectively as are specifically stated to survive the termination of this Agreement or (ii) treat this Agreement as being in full force and effect and pursue only the remedy of specific performance against Seller.
Seller Pre-Closing Defaults. 18.2.1 In the event that on the Closing Date Seller has defaulted on its obligations hereunder in any material respect, then, subject to the provisions set forth below, Purchaser shall be entitled, as its sole remedy, to either: (x) treat this Agreement as being in full force and effect and pursue only the remedy of specific performance against Seller; or (y) terminate this Agreement and (i) receive a return of the Deposit from Escrow Agent and (ii) recover all of the third-party, out-of-pocket, documented costs actually incurred by Purchaser in connection with the transactions contemplated hereby, not to exceed One Hundred Thousand and No/100 Dollars ($100,000.00), and Seller shall not have any further liability or obligation to Purchaser hereunder nor shall Purchaser have any further liability or obligation to Seller hereunder, except for such obligations (but not liabilities) of the parties respectively as are specifically stated to survive the termination of this Agreement.
