Common use of Sellers’ Pre-Closing Default; Purchaser’s Pre-Closing Remedies Clause in Contracts

Sellers’ Pre-Closing Default; Purchaser’s Pre-Closing Remedies. If any Seller breaches its obligations under this Agreement prior to the Closing in any material respect and such breach has not been cured within 30 days after written notice thereof from Purchaser (provided that the parties agree and acknowledge that if such 30-day period would exceed the Closing Date, at their option, Sellers may extend the Closing Date for the period required to effect such cure, but not beyond the date which is 30 days after Purchaser’s foregoing written notice), then, as Purchaser’s sole and exclusive remedy hereunder and at Purchaser’s option, Purchaser may, upon notice to Sellers, given not more than 15 Business Days after the expiration of such cure period: (a) terminate this Agreement in its entirety by giving Sellers written notice of such election prior to or at the Closing, and (i) the Deposit then held by Escrowee (and any interest thereon) shall (to the extent of the then outstanding principal amount of the Loan Agreement) be remitted to Summit, or its permitted assign under the Loan Agreement, and automatically applied towards any then outstanding principal balance of that certain Loan Agreement dated February 11, 2016 between Summit Hotel OP, LP and American Realty Capital Hospitality Trust, Inc. (“Loan Agreement”) and the remaining balance, if any, of the Deposit then held by Escrowee (and any interest thereon) shall be remitted to and may be retained by Purchaser, and (ii) recover from the applicable Sellers all of Purchaser’s reasonable out-of-pocket expenses incurred in connection with this Agreement and the transactions contemplated hereby, including, but not limited to, its reasonable legal fees and diligence costs, which reimbursement in the aggregate amount amongst all Sellers shall not exceed $644,882; (b) waive the default and proceed to the Closing (subject to the terms of this Agreement); or (c) if applicable, elect to treat the Hotel Asset with respect to which such breach of representation or warranty occurred as an Excluded Representation Asset and proceed to the Closing (subject to the terms of this Agreement) with respect to the other applicable Hotel Assets.

Sellers’ Pre-Closing Default; Purchaser’s Pre-Closing Remedies. If any Seller breaches its obligations under this Agreement prior to the either Closing in any material respect and such breach has not been cured within 30 days after written notice thereof from Purchaser (provided that the parties agree and acknowledge that if such 30-day period would exceed the applicable Closing Date, at their option, Sellers may extend the such Closing Date for the period required to effect such cure, but not beyond the date which is 30 days after Purchaser’s foregoing written notice), then, as Purchaser’s sole and exclusive remedy hereunder and at Purchaser’s option, Purchaser may, upon notice to Sellers, given not more than 15 Business Days after the expiration of such cure period: (a) terminate this Agreement in its entirety by giving Sellers written notice of such election prior to or at the Closingapplicable Closing (but for the avoidance of doubt, if a Closing has already occurred, such Closing and the provisions of this Agreement with respect thereto shall not be affected by such termination) and (i) receive the Deposit then held by Escrowee (and any interest thereon) shall (to the extent of the then outstanding principal amount of the Loan Agreement) be remitted to Summit, or its permitted assign under the Loan Agreement, and automatically applied towards any then outstanding principal balance of that certain Loan Agreement dated February 11, 2016 between Summit Hotel OP, LP and American Realty Capital Hospitality Trust, Inc. (“Loan Agreement”) and the remaining balance, if any, of the Deposit then held by Escrowee (and any interest thereon) shall be remitted to and may be retained by Purchaser), and (ii) recover from the applicable Sellers all of Purchaser’s reasonable out-of-pocket expenses incurred in connection with this Agreement and the transactions contemplated hereby, including, but not limited to, its reasonable legal fees and diligence costs, which reimbursement in the aggregate amount amongst all Sellers shall not exceed $644,8821,855,118; (b) waive the default and proceed to the applicable Closing (subject to the terms of this Agreement); (c) if Purchaser determines that such breach is curable but additional time is needed to cure such breach, extend the cure period and defer the Closing of one or more Hotel Assets to be sold in such Closing to the next Closing (i.e., from the First Closing to the Second Closing) in which case the particular Hotel Asset shall be deemed to be part of the next Pool and shall continue to subject to the terms of this Agreement; (d) seek specific performance of this Agreement against Sellers by filing an action therefore within 60 days after the originally scheduled Closing Date; or (ce) if applicable, elect to treat the Hotel Asset with respect to which such breach of representation or warranty occurred as an Excluded Representation Asset and proceed to the applicable Closing (subject to the terms of this Agreement) with respect to the other applicable Hotel Assets. Notwithstanding anything to the contrary contained herein, if any Seller willfully breaches this Agreement and sells its applicable Hotel Asset to someone other than Purchaser while this Agreement is in effect, then Purchaser shall be entitled to bring an action against Sellers to recover all of its damages and costs relating to such breach, including, but not limited to, actual, compensatory, consequential, special and punitive damages.

Sellers’ Pre-Closing Default; Purchaser’s Pre-Closing Remedies. If any Seller breaches its obligations under this Agreement prior to the Closing in any material respect and such breach has not been cured within 30 days after written notice thereof from Purchaser (provided that the parties agree and acknowledge that if such 30-day period would exceed the Closing Date, at their option, Sellers may extend the Closing Date for the period required to effect such cure, but not beyond the date which is 30 days after Purchaser’s foregoing written notice), then, as Purchaser’s sole and exclusive remedy hereunder and at Purchaser’s option, Purchaser may, upon notice to Sellers, given not more than 15 Business Days after the expiration of such cure period: (a) terminate this Agreement in its entirety by giving Sellers written notice of such election prior to or at the Closing, Closing and (i) receive the Deposit then held by Escrowee (and any interest thereon) shall (to the extent of the then outstanding principal amount of the Loan Agreement) be remitted to Summit, or its permitted assign under the Loan Agreement, and automatically applied towards any then outstanding principal balance of that certain Loan Agreement dated February 11, 2016 between Summit Hotel OP, LP and American Realty Capital Hospitality Trust, Inc. (“Loan Agreement”) and the remaining balance, if any, of the Deposit then held by Escrowee (and any interest thereon) shall be remitted to and may be retained by Purchaser), and (ii) recover from the applicable Sellers all of Purchaser’s reasonable out-of-pocket expenses incurred in connection with this Agreement and the transactions contemplated hereby, including, but not limited to, its reasonable legal fees and diligence costs, which reimbursement in the aggregate amount amongst all Sellers shall not exceed $644,882; (b) waive the default and proceed to the Closing (subject to the terms of this Agreement); (c) if Purchaser determines that such breach is curable but additional time is needed to cure such breach, extend the cure period and defer the Closing of one or more Hotel Assets to be sold in the Closing or; (d) seek specific performance of this Agreement against Sellers by filing an action therefore within 60 days after the originally scheduled Closing Date; or (ce) if applicable, elect to treat the Hotel Asset with respect to which such breach of representation or warranty occurred as an Excluded Representation Asset and proceed to the Closing (subject to the terms of this Agreement) with respect to the other applicable Hotel Assets. Notwithstanding anything to the contrary contained herein, if any Seller willfully breaches this Agreement and sells its applicable Hotel Asset to someone other than Purchaser while this Agreement is in effect, then Purchaser shall be entitled to bring an action against Sellers to recover all of its damages and costs relating to such breach, including, but not limited to, actual, compensatory, consequential, special and punitive damages.

Sellers’ Pre-Closing Default; Purchaser’s Pre-Closing Remedies. If any Notwithstanding anything to the contrary contained in this Agreement, if a Seller breaches its obligations under this Agreement prior to the Closing in any material respect and such breach has not been cured within 30 thirty (30) days after written notice thereof from Purchaser (provided that the parties agree and acknowledge that if such thirty (30-) day period would exceed the Closing Date, at their option, Sellers may extend the such Closing Date for the period required to effect such cure, but not beyond the date which is 30 thirty (30) days after Purchaser’s foregoing written notice), then, as Purchaser’s sole and exclusive remedy hereunder and at Purchaser’s option, Purchaser may, upon notice to SellersSeller, given not more than 15 fifteen (15) Business Days after the expiration of such cure period: , and provided an action is filed within thirty (30) days thereafter (a) terminate this Agreement in its entirety by giving Sellers written notice of such election prior to or at the Closing, and (i) subject to Section 14.22, to receive the Deposit then held by Escrowee (and any interest thereon) shall (to the extent of the then outstanding principal amount of the Loan Agreement) be remitted to Summit, or its permitted assign under the Loan Agreement, and automatically applied towards any then outstanding principal balance of that certain Loan Agreement dated February 11, 2016 between Summit Hotel OP, LP and American Realty Capital Hospitality Trust, Inc. (“Loan Agreement”) and the remaining balance, if any, of the Deposit then held by Escrowee (and any interest thereon) shall be remitted to and may be retained by PurchaserXxxxxxx Money, and (ii) only in the event that Purchaser has not sought specific performance, to recover from the applicable Sellers Seller all of Purchaser’s reasonable out-of-pocket expenses incurred in connection with this Agreement and the transactions contemplated hereby, including, but not limited to, its reasonable legal fees and diligence costs, which reimbursement in the aggregate amount amongst all Sellers shall not exceed $644,8822,000,000; (b) waive the default and proceed to the Closing (subject to the terms of this Agreement)Closing; or (c) if applicable, elect to treat seek specific performance of this Agreement against Sellers by filing an action therefore within thirty (30) days after the Hotel Asset with respect to which such breach of representation or warranty occurred as an Excluded Representation Asset and proceed originally scheduled Closing Date. Notwithstanding anything to the Closing (subject contrary contained herein, if any Seller willfully breaches this Agreement and sells its portion of the Property to someone other than Purchaser while the terms Agreement is in effect, then Purchaser shall be entitled to bring an action against such Seller to recover all of this Agreement) with respect its damages and costs relating to the other applicable Hotel Assetssuch breach, including, but not limited to, actual and compensatory damages.

Sellers’ Pre-Closing Default; Purchaser’s Pre-Closing Remedies. If any Notwithstanding anything to the contrary contained in this Agreement, if a Seller breaches its obligations under this Agreement prior to the Closing in any material respect and such breach has not been cured within 30 thirty (30) days after written notice thereof from Purchaser (provided that the parties agree and acknowledge that if such thirty (30-) day period would exceed the Closing Date, at their option, Sellers may extend the such Closing Date for the period required to effect such cure, but not beyond the date which is 30 thirty (30) days after Purchaser’s foregoing written notice), then, as Purchaser’s sole and exclusive remedy hereunder and at Purchaser’s option, Purchaser may, upon notice to SellersSeller, given not more than 15 fifteen (15) Business Days after the expiration of such cure period: , and provided an action is filed within thirty (30) days thereafter (a) terminate this Agreement in its entirety by giving Sellers written notice of such election prior to or at the Closing, and (i) subject to Section 14.22, to receive the Deposit then held by Escrowee (and any interest thereon) shall (to the extent of the then outstanding principal amount of the Loan Agreement) be remitted to Summit, or its permitted assign under the Loan Agreement, and automatically applied towards any then outstanding principal balance of that certain Loan Agreement dated February 11, 2016 between Summit Hotel OP, LP and American Realty Capital Hospitality Trust, Inc. (“Loan Agreement”) and the remaining balance, if any, of the Deposit then held by Escrowee (and any interest thereon) shall be remitted to and may be retained by PurchaserExxxxxx Money, and (ii) only in the event that Purchaser has not sought specific performance, to recover from the applicable Sellers Seller all of Purchaser’s reasonable out-of-pocket expenses incurred in connection with this Agreement and the transactions contemplated hereby, including, but not limited to, its reasonable legal fees and diligence costs, which reimbursement in the aggregate amount amongst all Sellers shall not exceed $644,8822,000,000; (b) waive the default and proceed to the Closing (subject to the terms of this Agreement)Closing; or (c) if applicable, elect to treat seek specific performance of this Agreement against Sellers by filing an action therefore within thirty (30) days after the Hotel Asset with respect to which such breach of representation or warranty occurred as an Excluded Representation Asset and proceed originally scheduled Closing Date. Notwithstanding anything to the Closing (subject contrary contained herein, if any Seller willfully breaches this Agreement and sells its portion of the Property to someone other than Purchaser while the terms Agreement is in effect, then Purchaser shall be entitled to bring an action against such Seller to recover all of this Agreement) with respect its damages and costs relating to the other applicable Hotel Assetssuch breach, including, but not limited to, actual and compensatory damages.

Sellers’ Pre-Closing Default; Purchaser’s Pre-Closing Remedies. If any Notwithstanding anything to the contrary contained in this Agreement, if a Seller breaches its obligations under this Agreement prior to the Closing in any material respect and such breach has not been cured within 30 thirty (30) days after written notice thereof from Purchaser (provided that the parties agree and acknowledge that if such thirty (30-) day period would exceed the Closing Date, at their option, Sellers may extend the such Closing Date for the period required to effect such cure, but not beyond the date which is 30 thirty (30) days after Purchaser’s foregoing written notice), then, as Purchaser’s sole and exclusive remedy hereunder and at Purchaser’s option, Purchaser may, upon notice to SellersSeller, given not more than 15 fifteen (15) Business Days after the expiration of such cure period: , and provided an action is filed within thirty (30) days thereafter (a) terminate this Agreement in its entirety by giving Sellers written notice of such election prior to or at the Closing, and (i) subject to Section 14.22, to receive the Deposit then held by Escrowee (and any interest thereon) shall (to the extent of the then outstanding principal amount of the Loan Agreement) be remitted to Summit, or its permitted assign under the Loan Agreement, and automatically applied towards any then outstanding principal balance of that certain Loan Agreement dated February 11, 2016 between Summit Hotel OP, LP and American Realty Capital Hospitality Trust, Inc. (“Loan Agreement”) and the remaining balance, if any, of the Deposit then held by Escrowee (and any interest thereon) shall be remitted to and may be retained by PurchaserXxxxxxx Money, and (ii) only in the event that Purchaser has not sought specific performance, to recover from the applicable Sellers Seller all of Purchaser’s reasonable out-of-pocket expenses incurred in connection with this Agreement and the transactions contemplated hereby, including, but not limited to, its reasonable legal fees and diligence costs, which reimbursement in the aggregate amount amongst all Sellers shall not exceed $644,8822,000,000; (b) waive the default and proceed to the Closing (subject to the terms of this Agreement)close; or (c) if applicable, elect to treat seek specific performance of this Agreement against Sellers by filing an action therefore within thirty (30) days after the Hotel Asset with respect to which such breach of representation or warranty occurred as an Excluded Representation Asset and proceed originally scheduled Closing Date. Notwithstanding anything to the Closing (subject contrary contained herein, if any Seller willfully breaches this Agreement and sells its portion of the Property to someone other than Purchaser while the terms Agreement is in effect, then Purchaser shall be entitled to bring an action against such Seller to recover all of this Agreement) with respect its damages and costs relating to the other applicable Hotel Assetssuch breach, including, but not limited to, actual and compensatory damages.