Common use of Default by Sellers Clause in Contracts

Default by Sellers. Notwithstanding any provision in this Agreement to the contrary, if Closing of the purchase and sale transaction provided for herein does not occur as herein provided by reason of any default of Sellers, Purchaser may, as Purchaser’s sole and exclusive remedies, elect by written notice to Sellers within five (5) Business Days following the scheduled Closing Date, to either (a) terminate this Agreement, in which event Sellers shall be obligated to promptly reimburse Purchaser for its actual out of pocket costs incurred in connection with this Agreement or the Property including, but not limited to, the negotiation of this Agreement, Purchaser’s due diligence with respect to the Property, Purchaser’s financing with respect to the Property (including, but not limited to, good faith deposits, commitment fees, and costs of hedging and other rate lock contracts), and all of Purchaser’s legal fees and expenses related thereto, not to exceed, however, $700,000.00 with respect to this Agreement and the Other Property Agreements in the aggregate, and Purchaser shall receive from the Title Company the Xxxxxxx Money Deposit, whereupon Sellers and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations, or (b) pursue specific performance of this Agreement, so long as any action or proceeding commenced by Purchaser against Sellers shall be filed and served within thirty (30) days of the scheduled Closing Date, and, in either event, Purchaser hereby waives all other remedies, including without limitation, any claim against Sellers for damages of any type or kind including, without limitation, consequential or punitive damages. Unless otherwise expressly required pursuant to this Agreement, in no event shall Sellers be obligated to undertake any of the following (A) change the condition of the Property or restore the same after any fire or casualty; (B) expend money or post a bond to remove or insure over anything other than a Must-Cure Matter or to correct any matter shown on a survey of the Property; (C) secure any permit with respect to the Property or Sellers’ conveyance thereof; or (D) expend any money to repair, improve or alter the Improvements or any portion thereof. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in the event of a breach by Sellers of any of the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after termination, subject to the terms and provisions of this Agreement.

Default by Sellers. Notwithstanding If any provision of the Sellers fail to perform in this Agreement any material respect the covenants and agreements contained herein to the contrarybe performed by such Sellers within, if Closing of applicable, the purchase and sale transaction provided time for performance as specified herein does not occur as herein provided by reason of any default of (including, without limitation, Sellers’ obligation to close), Purchaser mayshall be entitled, as Purchaser’s its sole and exclusive remediesremedy, elect by written notice to Sellers within five (5) Business Days following the scheduled Closing Date, to either (a) terminate this Agreementto receive the return of the Xxxxxxx Money, in less the Independent Consideration, plus, if such Seller’s default is intentional and specific performance is unavailable or impractical to require such Seller to perform the specific obligation which event Sellers shall be obligated resulted in, so as to promptly reimburse Purchaser for its actual out cure, such default, recovery of pocket Purchaser’s actual, out-of-pocket, third party costs incurred in connection with this transaction, up to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) in the aggregate for all Properties, which return and recovery shall operate to terminate this Agreement or the Property including, but not limited to, the negotiation of this Agreement, Purchaser’s due diligence with respect to all of the Property, Purchaser’s financing with respect to the Property (including, but not limited to, good faith deposits, commitment fees, Properties and costs of hedging and other rate lock contracts), release Sellers from any and all liabilities and obligations hereunder, or (b) to enforce specific performance of Purchaser’s legal fees and expenses related thereto, not to exceed, however, $700,000.00 with respect to this Agreement and the Other Property Agreements in the aggregate, and Purchaser shall receive from the Title Company the Xxxxxxx Money Deposit, whereupon Sellers and Purchaser will have no further rights or Sellers’ obligations under this Agreement, except with respect to the Termination Surviving Obligations, or (b) pursue specific performance of this Agreement, so long as any action or proceeding commenced by Purchaser against Sellers shall be filed and served within thirty (30) days of the scheduled Closing Date, and, in either event, Purchaser hereby waives all other remedies, including without limitation, any claim against Sellers for damages of any type or kind including, without limitation, consequential or punitive damages. Unless otherwise expressly to execute the documents required pursuant by the terms of this Agreement and to convey the Properties to Purchaser in accordance with the terms of 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 ninety (90) days after Purchaser becomes aware of the default by Sellers, (B) Purchaser is not in default under this Agreement, in no event and (C) Purchaser has furnished ten (10) days prior written notice to Sellers of its intent and election to seek specific enforcement of this Agreement and (ii) notwithstanding anything to the contrary contained herein, Sellers shall Sellers not be obligated to undertake expend any of sums to cure any defaults under this Agreement (other than to apply the following (APurchase Price to release Liquidated Defects) change the condition of and if Purchaser seeks specific performance under this Agreement, Purchaser agrees to accept the Property in its “WHERE IS, AS IS” condition in accordance with Article IX. Purchaser hereby agrees that prior to its exercise of any rights or restore the same after remedies as a result of any fire or casualty; defaults by any Seller (B) expend money or post a bond to remove or insure over anything other than a Must-Cure Matter default of Section 4.2 or of an obligation to correct be performed on the Closing Date), Purchaser will first deliver written notice of said default to such Seller, and if such Seller so elects, such Seller shall have the opportunity, but not the obligation, to cure such default within five (5) business days after such Seller’s receipt of such notice. In no event whatsoever shall Purchaser file any matter shown on a survey instrument of record against title to the Property; (C) secure any permit with respect . Purchaser expressly waives its rights to the Property or Sellers’ conveyance thereof; or (D) expend any seek money to repair, improve or alter the Improvements or any portion thereof. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided damages in the event of Sellers’ default hereunder, except, following Closing, in the case of any Seller’s actual fraud or, subject Section 5.3, in the case of a breach by Sellers of any representation, warranty or covenant of any Seller which expressly survives the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after termination, subject to the terms and provisions of this AgreementClosing.

Default by Sellers. Notwithstanding any provision in this Agreement to (a) In the contrary, if Closing of the purchase and sale transaction provided for herein does not occur as herein provided by reason event of any default by Sellers in the performance of Sellersthe terms of this Agreement that would entitle Purchaser to a right to terminate this Agreement due to such default (including Sections 4.5, Purchaser may8.3, as 8.4 or 15.23(c) hereof), Purchaser’s sole remedy will be to elect either to: (i) terminate this Agreement and exclusive remediesreceive, elect by written notice to Sellers within five (5) Business Days following the scheduled Closing Datein full consideration of any Claims Purchaser may have against Sellers, to either (a) terminate this Agreementa refund of the Deposit from the Escrow Agent pursuant to Article XIV, in which event Sellers shall be obligated to promptly reimburse Purchaser for its actual out plus (b) reimbursement of the amount of all direct third party out-of-pocket costs and expenses actually incurred by Purchaser in connection with this Agreement Agreement, including the fees and costs with respect to attorneys, accountants, engineers, consultants, due diligence inspections of the Properties, third party reports, Title Company costs and expenses and any forfeited commitment, good faith or the Property includingrate lock deposits or fees paid to a lender and any lender’s legal fees and expenses, but not limited excluding all employee and affiliate compensation, as documented by paid invoices and evidence of payment, up to, in the negotiation aggregate, Five Hundred Thousand and 00/100 Dollars ($500,000.00) (collectively, and subject to such limitation, “Purchaser’s Costs”); (ii) waive the default by Sellers and close the transaction contemplated by this Agreement notwithstanding the default by Sellers; or (iii) commence within sixty (60) days of the date the Closing was to have occurred and diligently prosecute an action in the nature of specific performance; provided, however, that if Purchaser elects to commence such action and is unsuccessful for any reason other than by reason of Sellers’ conveying any Property to a third party, then Purchaser will receive a refund of the Deposit and Sellers shall pay to Purchaser all of Purchaser’s Costs, and the Sellers’ shall have no further liability to Purchaser under this Agreement (except those that expressly survive termination of this Agreement). (b) Notwithstanding the foregoing, in the event (i) Sellers shall be in default of the terms of this Agreement due to Sellers’ failure to sell and convey the Properties to Purchaser in accordance with the terms of this Agreement, Purchaser’s due diligence with respect (ii) Purchaser has performed or satisfied, as applicable, all of the conditions to Sellers’ obligation to sell as set forth in Section 4.2 hereof and has sent prompt written notice of such performance and its readiness and willingness to close the Propertytransaction contemplated by this Agreement to Sellers, Purchaser’s financing with respect (iii) Purchaser shall have commenced within sixty (60) days of the date the Closing was to have occurred (and shall be diligently prosecuting) an action in the Property (including, but not limited to, good faith deposits, commitment feesnature of specific performance, and costs (iv) such action in the nature of hedging and specific performance is not an available remedy as a result of Sellers’ transfer of the Properties to a third party other rate lock contractsthan Purchaser (or its Affiliated Entity(ies)), and then Purchaser will receive a refund of the Deposit, Sellers shall pay to Purchaser all of Purchaser’s legal fees and expenses related thereto, not to exceed, however, $700,000.00 with respect to this Agreement and the Other Property Agreements in the aggregateCosts, and Sellers shall pay to Purchaser shall receive from the Title Company the Xxxxxxx Money Deposit, whereupon a liquidated damages payment equal to Three Million Five Hundred Thousand Dollars and No/100 ($3,500,000.00) (“LD Payment”) as liquidated damages. It is agreed between Sellers and Purchaser will have no further rights or obligations under this Agreement, except with respect that the actual damages to the Termination Surviving Obligations, or (b) pursue specific performance Purchaser as a result of this Agreementdefault by Sellers are impractical to ascertain, so long as any action or proceeding commenced by Purchaser against Sellers shall be filed and served within thirty (30) days the return of the scheduled Closing Date, and, in either event, Purchaser hereby waives all other remedies, including without limitation, any claim against Sellers for damages Deposit plus payment of any type or kind including, without limitation, consequential or punitive damages. Unless otherwise expressly required pursuant to this Agreement, in no event shall Sellers be obligated to undertake any of the following (A) change the condition of the Property or restore the same after any fire or casualty; (B) expend money or post a bond to remove or insure over anything other than a Must-Cure Matter or to correct any matter shown on a survey of the Property; (C) secure any permit with respect to the Property or Sellers’ conveyance thereof; or (D) expend any money to repair, improve or alter the Improvements or any portion thereof. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at lawCosts and the LD Payment is a reasonable estimate thereof. (c) NOTWITHSTANDING THE FOREGOING, in equity or as herein provided in the event of a breach by Sellers of any of the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after terminationPURCHASER SHALL RETAIN ALL OF ITS OTHER RIGHTS PURSUANT TO THIS AGREEMENT AND ANY CLOSING DOCUMENTS, subject to the terms and provisions of this AgreementAND, EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, NOTHING CONTAINED IN THIS SECTION 12.2, WILL LIMIT THE LIABILITY OF SELLERS UNDER (I) ANY INDEMNITY PROVIDED BY SELLERS UNDER THIS AGREEMENT OR ANY OF THE CLOSING DOCUMENTS EXECUTED AND DELIVERED TO PURCHASER PURSUANT TO THE TERMS OF THIS AGREEMENT, OR (II) ANY ACTIONS COMMENCED AFTER CLOSING WITH RESPECT TO ANY OBLIGATION OR REPRESENTATION OF EITHER SELLERS OR PURCHASER WHICH, BY THE TERMS OF THIS AGREEMENT SURVIVES CLOSING, INCLUDING, BUT NOT LIMITED TO, PROVISIONS REGARDING CONFIDENTIALITY AND PAYMENT OF BROKERAGE FEES (IT BEING AGREED THAT SELLERS’ LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED AS PROVIDED IN SECTIONS 15.16 AND 15.23). UNDER NO CIRCUMSTANCES WILL PURCHASER HAVE AVAILABLE TO IT AN ACTION AT LAW OR OTHERWISE FOR DAMAGES, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN THE CLOSING DOCUMENTS.

Default by Sellers. Notwithstanding If the Sellers fail to perform any provision obligation contained in this Goodwill Protection Agreement, the Purchase Agreement to or any instrument entered into in connection therewith, the contrary, if Closing of the purchase and sale transaction provided for herein does not occur as herein provided by reason of any default of Sellers, Purchaser may, as Purchaser’s sole and exclusive remedies, elect by Buyer will serve written notice to the Sellers specifying the nature of such default and demanding performance. If such default has not been cured within five (5) Business Days following business days after receipt of such default notice, the scheduled Closing DateBuyer will be entitled to demand specific performance, to either (a) terminate suspend performance of any obligation under this Goodwill Protection Agreement, or exercise all remedies available at law or in which event Sellers shall be obligated to promptly reimburse Purchaser for its actual out equity. Given the nature of pocket costs incurred in connection with this Agreement or the Property including, but not limited toPharmacy Business, the negotiation parties acknowledge and agree that the goodwill sold by the Sellers and purchased by the Buyer cannot be protected if the provisions of this Goodwill Protection Agreement are not strictly enforced. Accordingly, the parties acknowledge and agree that if there is a breach by the Sellers of the provisions of this Goodwill Protection Agreement, Purchaser’s due diligence with respect money damages alone will not be adequate and the Buyer will be entitled to an injunction restraining the Sellers from violating the provisions of this Goodwill Protection Agreement. In addition to the Property, Purchaser’s financing with respect foregoing and any other remedies available to the Property (includingBuyer, but not limited toat law or in equity, good faith deposits, commitment fees, and costs of hedging and other rate lock contracts), and all of Purchaser’s legal fees and expenses related thereto, not to exceed, however, $700,000.00 with respect to this Agreement and the Other Property Agreements in the aggregate, and Purchaser shall receive from the Title Company the Xxxxxxx Money Deposit, whereupon Sellers and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations, or (b) pursue specific performance of this Agreement, so long as any action or proceeding commenced by Purchaser against Sellers shall be filed and served within thirty (30) days of the scheduled Closing Date, and, in either event, Purchaser hereby waives all other remedies, including without limitation, any claim against Sellers for damages of any type or kind including, without limitation, consequential or punitive damages. Unless otherwise expressly required pursuant to this Agreement, in no event shall Sellers be obligated to undertake any of the following (A) change the condition of the Property or restore the same after any fire or casualty; (B) expend money or post a bond to remove or insure over anything other than a Must-Cure Matter or to correct any matter shown on a survey of the Property; (C) secure any permit with respect to the Property or Sellers’ conveyance thereof; or (D) expend any money to repair, improve or alter the Improvements or any portion thereof. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in the event the Sellers are in default and the Buyer is diligently pursuing a judicial remedy, the periods specified in paragraphs 1.1, 1.2 and 1.3 will be tolled until the conclusion of the judicial action (the “Tolling Period”) and such periods will be automatically extended by the number of days elapsed during the Tolling Period. The remedies provided by this Goodwill Protection Agreement are cumulative and will not exclude any other remedy to which a breach by Sellers party might be entitled under this Goodwill Protection Agreement. In the event, a party elects to selectively and successively enforce such party’s rights under this Goodwill Protection Agreement, such action will not be deemed a waiver or discharge of any of the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after termination, subject to the terms and provisions of this Agreementother remedy.

Default by Sellers. Notwithstanding If MI, on behalf of itself or any provision Owner, shall have made any representation or warranty herein with respect to any Property which shall be untrue in this Agreement to the contrary, if Closing of the purchase and sale transaction provided for herein does not occur any material respect when made or updated as herein provided by reason and Purchaser or Tenant has knowledge of any such default of Sellers, Purchaser may, as Purchaser’s sole and exclusive remedies, elect by written notice prior to Sellers within five (5) Business Days following or on the scheduled Closing Date, or if any Owner or MI shall fail to either perform any of the material covenants and agreements contained herein with respect to any Property and such condition or failure continues for a period of ten (a10) days (or such additional period as may be reasonably required to effectuate a cure of the same) after written notice thereof from Purchaser or Tenant (collectively, an "Owner Default"), Purchaser's and Tenant's sole remedy shall be (A) to terminate this AgreementAgreement with respect to such Property affected by Owner's and/or MI's breach (the "Terminated Property") and this Agreement shall be of no further force and effect with respect to the Terminated Property, except with respect to provisions hereof which by their express terms survive a termination of this Agreement in which event Sellers shall be obligated reimburse to promptly reimburse Purchaser for its actual and Tenant an amount equal to (x) the Purchaser's and Tenant's direct, out of pocket costs expenses incurred in connection with this Agreement or respect of the Property including, but not limited to, the negotiation of this Agreement, Purchaser’s due diligence with respect to the Property, Purchaser’s financing with respect to the Property (including, but not limited to, good faith deposits, commitment fees, and costs of hedging and other rate lock contracts), and all of Purchaser’s legal fees and expenses related theretoProperties, not to exceedexceed a combined total of $300,000 payable to Purchaser and Tenant as they may direct, however, $700,000.00 multiplied by (x) a fraction with respect the numerator equal to this Agreement the Purchase Price allocated to the Terminated Property and the Other Property Agreements in the aggregate, and Purchaser shall receive from the Title Company the Xxxxxxx Money Deposit, whereupon Sellers and Purchaser will have no further rights or obligations under this Agreement, except with respect denominator equal to the Termination Surviving Obligations, or (b) pursue specific performance total Purchase Price of this Agreement, so long as any action or proceeding commenced by Purchaser against Sellers shall be filed and served within thirty (30) days all of the scheduled Closing Date, and, in either event, Purchaser hereby waives all other remedies, including without limitation, any claim against Sellers for damages of any type Properties; or kind including, without limitation, consequential or punitive damages. Unless otherwise expressly required pursuant to this Agreement, in no event shall Sellers be obligated to undertake any of the following (A) change the condition of the Property or restore the same after any fire or casualty; (B) expend money to consummate the transactions contemplated hereby, notwithstanding such default, without any abatement or post reduction in the Purchase Price on account thereof. It is understood and agreed that for purposes of this Section 10.1, if a bond default results from a false representation or warranty, such default shall be deemed cured if the events, conditions, acts or omissions giving rise to remove the falsehood are cured within the applicable cure period even though, as a technical matter, such representation or insure over anything other than a Must-Cure Matter or to correct any matter shown on a survey warranty was false as of the Property; (C) secure any permit with respect to the Property or Sellers’ conveyance thereof; or (D) expend any money to repair, improve or alter the Improvements or any portion thereof. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in the event of a breach by Sellers of any of the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after termination, subject to the terms and provisions of this Agreementdate actually made.

Default by Sellers. Notwithstanding any provision in this Agreement to (a) If the contrary, if Closing of the purchase and sale transaction provided for herein does not occur as herein provided by reason due to (i) any representation or warranty of any Seller contained in Articles III and IV, respectively, being inaccurate in any material respect when made or deemed made (without limiting the effect of Section 6.5), or (ii) the failure or inability of any Seller or HdC Parent to perform its obligations hereunder in any material respect, which, in either case, is not cured within fifteen (15) days after notice thereof from Purchaser (which fifteen (15) day period shall, if necessary, automatically extend the Closing Date to the expiration date of such fifteen (15) day period), and if individually or in the aggregate, the Losses incurred by the Purchaser Indemnified Parties resulting from such inaccuracies or nonperformances described in clauses (i) and (ii) of this sentence reasonably would be expected to exceed Five Million Dollars ($5,000,000) (the "Threshold Amount"), so long as all conditions precedent to Sellers' obligations hereunder have been satisfied (other than any conditions precedent which are not satisfied due to the default of Sellersby any Seller Parties or HdC Parent), Purchaser maythen Purchaser, as Purchaser’s its sole and exclusive remediesremedy, shall elect by written notice to Sellers within five (5) Business Days following the scheduled Closing Date, to either (ax) to terminate this Agreement, in which event the parties shall retain their rights to enforce the Inspection Agreement, the Confidentiality Agreement and the provisions of Section 8.6 which expressly survive a termination of this Agreement, the Deposit shall be returned to Purchaser, and all other rights and obligations of the parties hereunder (except those set forth in this clause (x)) shall terminate immediately; or (y) to irrevocably waive such default, nonperformance, inaccuracy or breach and proceed to Closing with a reduction in the Adjusted Gross Purchase Price equal to the reasonably estimated Losses over and above the Deductible, but in no event more than Four Million ($4,000,000); or (z) to commence an action for specific performance; provided, however, that the remedy of specific performance shall be available to Purchaser only in the case of a willful refusal to close by the Seller Parties (including a willful failure to close by Sellers under the CNL Agreement) and in the event Purchaser files a suit for specific performance within forty-five (45) days following the Closing Date, failing which, Purchaser shall be barred from enforcing Sellers' obligations in such manner and shall be deemed to have elected to terminate this Agreement pursuant to clause (x). In the event that Purchaser elects to terminate this Agreement pursuant to clause (x) above, Sellers may elect within two (2) Business Days after receipt of Purchaser's notice to nullify Purchasers' notice of termination by agreeing to reduce the Adjusted Gross Purchase Price by the reasonably estimated Losses over and above the Deductible, whereupon Purchaser shall be obligated to promptly reimburse Purchaser for its actual out of pocket costs incurred in connection with this Agreement or the Property including, but not limited to, the negotiation of this Agreement, Purchaser’s due diligence with respect proceed to the Property, Purchaser’s financing with respect to the Property (including, but not limited to, good faith deposits, commitment fees, and costs of hedging and other rate lock contracts), and all of Purchaser’s legal fees and expenses related thereto, not to exceed, however, $700,000.00 with respect to this Agreement and the Other Property Agreements in the aggregate, and Purchaser shall receive from the Title Company the Xxxxxxx Money Deposit, whereupon Sellers and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations, or (b) pursue specific performance of this Agreement, so long as any action or proceeding commenced by Purchaser against Sellers shall be filed and served within thirty (30) days of the scheduled Closing Date, and, in either event, Purchaser hereby waives all other remedies, including without limitation, any claim against Sellers for damages of any type or kind including, without limitation, consequential or punitive damagesClosing. Unless otherwise expressly required pursuant to this Agreement, in no event shall Sellers be obligated to undertake Notwithstanding any of the following (A) change the condition of the Property or restore the same after any fire or casualty; (B) expend money or post a bond to remove or insure over anything other than a Must-Cure Matter or to correct any matter shown on a survey of the Property; (C) secure any permit with respect foregoing to the Property or Sellers’ conveyance thereof; or (D) expend any money contrary, if and to repair, improve or alter the Improvements or any portion thereof. Notwithstanding extent the foregoing, nothing contained Losses referenced in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in the event of 10.1(a) are attributable solely to a breach by Sellers of any Article III Representations and Warranties, the amount of such Losses shall be applied to reduce the HdC Interest Purchase Price (as opposed to the Adjusted Gross Purchase Price). (b) If (i) any representation or warranty of any Seller contained in Articles III and IV, respectively, shall be inaccurate in any material respect when made or deemed made (without limiting the effect of Section 6.5), or (ii) any Seller or HdC Parent defaults in the performance of any of its obligations under this Agreement which are performable prior to Closing, and if the aggregate Losses incurred by the Purchaser Indemnified Parties resulting from such inaccuracies or nonperformances described in clauses (i) and (ii) of this sentence reasonably would not be expected to exceed the Threshold Amount, then, assuming that all of the Closing Surviving Obligations after Closing other conditions set forth in Section 6.1 have been satisfied, and provided such inaccuracy or such default is not the result of any intentional misconduct on the part of any Seller or the Termination HdC Parent, Purchaser shall be obligated to proceed to Closing with no reduction in the Adjusted Gross Purchase Price or the HdC Interest Purchase Price, and Purchaser's sole and exclusive remedies with respect thereto shall be as provided in Sections 10.3 and 10.4 (with the Losses incurred by the Purchaser Indemnified Parties carried forward and applied against the Deductible with respect to Surviving Obligations after termination, subject to the terms and provisions of this AgreementClaims).

Default by Sellers. Notwithstanding any provision in this Agreement to the contrary, if If Closing of the purchase and sale transaction provided for herein does not occur as herein provided by reason of any default of Sellers, Purchaser may, as Purchaser’s sole and exclusive remedies, elect by written notice to Sellers within five ten (510) Business Days business days following the scheduled Closing Date, to either (a) terminate this Agreement, in which event, Purchaser will receive from the Title Company the Xxxxxxx Money Deposit and, in the event that such termination is due to an intentional or willful default by Sellers, Sellers shall be obligated to promptly reimburse Purchaser for its actual out of Purchaser’s actual, out-of-pocket costs incurred in connection with this Agreement or and the Property includingtransaction contemplated hereby (including in connection with any proposed financing of the transaction contemplated by this Agreement) in an amount not to exceed $250,000, but not limited to, which obligation shall survive the negotiation termination of this Agreement, Purchaser’s due diligence with respect to the Property, Purchaser’s financing with respect to the Property (including, but not limited to, good faith deposits, commitment fees, and costs of hedging and other rate lock contracts), and all of Purchaser’s legal fees and expenses related thereto, not to exceed, however, $700,000.00 with respect to this Agreement and the Other Property Agreements in the aggregate, and Purchaser shall receive from the Title Company the Xxxxxxx Money Deposit, whereupon Sellers and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations, or (b) pursue specific performance of this Agreement, so long as any action or proceeding commenced by Purchaser against Sellers shall be filed and served within thirty sixty (3060) days of the scheduled Closing Date, and, in either event, Purchaser hereby waives all other remedies, including without limitation, any claim against Sellers for damages of any type or kind including, without limitation, consequential or punitive damages. Unless otherwise expressly required pursuant to this Agreement, in no event shall Sellers be obligated to undertake any of the following (A) change the condition of the Property or restore the same after any fire or casualty; (B) expend money or post a bond to remove or insure over anything other than a Must-Cure Matter or to correct any matter shown on a survey of the Property; (C) secure any permit with respect to the Property or Sellers’ conveyance thereof; or (D) expend any money to repair, improve or alter the Improvements or any portion thereof. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in the event of a breach by Sellers of any of the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after termination, subject to the terms and provisions of this Agreement.

Default by Sellers. Notwithstanding If any provision of the Sellers shall default in the ------------------ performance of its obligations under this Agreement in any material respect or if, as a result of a material breach by any Seller of its obligations pursuant to this Agreement, the contraryconditions precedent to Buyer's obligation to close specified in Section 7 are not satisfied, if Closing and Buyer shall not then be in default in the performance of its obligations hereunder in any material respect, Buyer shall then be entitled, at Buyer's sole option, either: A. to exercise Buyer's right to a decree of specific performance of the purchase transactions contemplated by this Agreement and sale transaction provided for herein does not occur as herein provided the right to injunctive relief in connection therewith, without any bond or security being required and without the necessity of showing actual damages, upon proper action instituted by reason Buyer. Sellers and Buyer acknowledge and agree that the subject matter of this Agreement is unique and accordingly, in the event of any action by Buyer to enforce this Agreement, Sellers hereby waive the defense that there is an adequate remedy at law. In the event of a breach or default which results in the filing of Sellersan action by Buyer for specific performance or injunctive relief, Purchaser maythe prevailing party in such action shall be entitled to receive reimbursement from the non-prevailing party for its costs and expenses in connection therewith, as Purchaser’s sole and exclusive remedies, elect including reasonable attorneys' fees. B. to terminate this Agreement by written notice to Sellers within five (5) Business Days following and to receive the scheduled Closing Date, to either (a) terminate this Agreementsum of $2,000,000 as liquidated damages, in which event Sellers and Buyer shall be obligated to promptly reimburse Purchaser for its actual out of pocket costs incurred in connection with discharged from all further liability under this Agreement or the Property including, but not limited to, the negotiation upon payment of this Agreement, Purchaser’s due diligence with respect such liquidated damages to the Property, Purchaser’s financing with respect to the Property (including, but not limited to, good faith deposits, commitment fees, and costs of hedging and other rate lock contracts), and all of Purchaser’s legal fees and expenses related thereto, not to exceed, however, $700,000.00 with respect to this Agreement and the Other Property Agreements in the aggregate, and Purchaser shall receive from the Title Company the Xxxxxxx Money Deposit, whereupon Buyer. Sellers and Purchaser will have no further rights or obligations under this Agreement, except with respect Buyer agree in advance that actual damages would be difficult to ascertain and that the Termination Surviving Obligations, or (b) pursue specific performance amount of this Agreement, so long as any action or proceeding commenced by Purchaser against Sellers shall be filed such liquidated damages is a fair and served within thirty (30) days of the scheduled Closing Date, and, in either event, Purchaser hereby waives all other remedies, including without limitation, any claim against Sellers equitable amount to reimburse Buyer for damages of any type or kind including, without limitation, consequential or punitive damages. Unless otherwise expressly required pursuant sustained due to this Agreement, in no event shall Sellers be obligated to undertake any of the following (A) change the condition of the Property or restore the same after any fire or casualty; (B) expend money or post a bond to remove or insure over anything other than a Must-Cure Matter or to correct any matter shown on a survey of the Property; (C) secure any permit with respect to the Property or Sellers’ conveyance thereof; or (D) expend any money to repair, improve or alter the Improvements or any portion thereof. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in the event of a breach such default by Sellers of any of the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after termination, subject to the terms and provisions of this Agreement.

Default by Sellers. Notwithstanding any provision in If a Seller defaults under this Agreement to the contrary, if Closing of the purchase and sale transaction provided for herein does not occur as herein provided by reason of any default of Sellers, Purchaser may, as Purchaser’s sole and exclusive remedies, elect by written notice to Sellers within five (5) Business Days following the scheduled Closing Date, to either (a) terminate this Agreement, in which event Sellers shall be obligated to promptly reimburse Purchaser for its actual out of pocket costs incurred in connection with this Agreement or the Property including, but not limited to, the negotiation of this Agreement, Purchaser’s due diligence with respect to the Property, Purchaser’s financing with respect to the Property (including, but not limited to, good faith deposits, commitment fees, by Sellers failing to deliver any of the items listed under Section 5.2 on or before the Closing Date) and costs of hedging and other rate lock contracts), and all of Purchaser’s legal fees and expenses related thereto, not such default continues for ten (10) days following notice from Buyer to exceed, however, $700,000.00 Sellers specifying the default (provided that no notice or cure period shall be required with respect to any default of any obligations to be performed at Closing), Buyer may exercise one of the following as its sole, exclusive and mutually-exclusive remedies, either (a) terminate this Agreement and the Other Property Agreements by giving written notice to Sellers, in the aggregate, and Purchaser which event Buyer shall receive from the Title Company be entitled to immediate refund of the Xxxxxxx Money Depositand recover its actual, whereupon Sellers third party costs incurred to conduct its due diligence activities, for any diligence reports ordered by Buyer with Sellers’ prior written approval, and Purchaser will have no further rights or obligations under for reasonable attorneys’ fees incurred in connection with entering into this Agreement, except with respect to the Termination Surviving Obligationsprovided such cost shall not exceed One Million and 00/100 Dollars ($1,000,000), or (b) pursue seek specific performance of this Agreement, so long as provided that Buyer shall commence any action or proceeding commenced for specific performance within sixty (60) days after such default, and in which event Buyer may also recover all of its actual and reasonable out of pocket costs incurred in seeking such specific performance; provided, such costs shall not exceed One Million and 00/100 Dollars ($1,000,000). If Buyer proceeds to Closing notwithstanding any defaults by Purchaser against Sellers Sellers, Buyer shall be filed and served within thirty (30) days of the scheduled Closing Date, and, in either event, Purchaser hereby waives all other remedies, including without limitation, any claim against Sellers for damages of any type or kind including, without limitation, consequential or punitive damages. Unless otherwise expressly required pursuant deemed to this Agreement, in no event shall Sellers be obligated to undertake any of the following (A) change the condition of the Property or restore the same after any fire or casualty; (B) expend money or post a bond to remove or insure over anything other than a Must-Cure Matter or to correct any matter shown on a survey of the Property; (C) secure any permit with respect to the Property or Sellers’ conveyance thereof; or (D) expend any money to repair, improve or alter the Improvements or any portion thereofhave waived such defaults. Notwithstanding the foregoing, nothing contained Buyer may enforce any provisions of this Agreement which have not otherwise been waived pursuant to this Agreement and survive Closing, and Buyer may recover from Sellers its reasonable fees and costs of enforcing those provisions. A default by the seller under the Harrisburg Purchase Agreement or by the seller under that certain Purchase Agreement between Buyer and Supervalu Holdings, Inc. dated as of the Effective Date (the “Joliet Purchase Agreement”) that occurs before the Closing contemplated under this Agreement, shall be deemed to be a default by Seller under this Agreement. Following a default by a seller under the Harrisburg Purchase Agreement or Joliet Purchase Agreement and the expiration of any applicable notice and cure period thereunder that occurs before the Closing contemplated under this Agreement, Buyer may pursue any of its remedies specified in this Section 13.1 will limit Purchaser’s remedies at law, in equity or 12.1 as herein provided in the a default by Seller hereunder. In no event of a breach shall Buyer be permitted to double recover any damages payable by Sellers of under clause (a) above. Any amounts payable by Sellers under clause (a) above shall be reduced to the extent a Seller has already paid any amount thereof to Buyer or any of the Closing Surviving Obligations after Closing Buyer’s Affiliates or the Termination Surviving Obligations after terminationother third parties, subject to the terms and provisions regardless of whether such payment was made under this Agreement, the Harrisburg Purchase Agreement or Joliet Purchase Agreement.

Default by Sellers. Notwithstanding If any provision Seller is in material default of any of the covenants or agreements of Sellers hereunder, Buyer, as a condition precedent to the exercise of its remedies or termination of this Agreement, shall be required to give Sellers written notice of the same and Sellers shall have five (5) business days from the receipt of such notice to cure the default; provided, however no such notice and cure period shall be applicable with respect to any default by Sellers in their obligation to close hereunder on the Closing Date in accordance with the terms of this Agreement. If Sellers have a cure right pursuant hereto and timely cure the default, the default shall be deemed waived and this Agreement shall continue in full force and effect. If Sellers fail to timely cure such default (or if Sellers have no right to cure a given default), or if any Seller Representation was untrue or inaccurate when made as of the Contract Date (and, in the event of any Seller Representation made to Sellers’ knowledge, Sellers had actual knowledge of such untruth or inaccuracy as of the Contract Date) or the same becomes untrue or inaccurate in any material respect as a result of a default by any Seller under an express covenant of Sellers set forth in this Agreement, then Buyer may either (i) elect to terminate this Agreement to the contrary, if Closing of the purchase and sale transaction provided for herein does not occur as herein provided by reason of any default of Sellers, Purchaser may, as Purchaser’s sole and exclusive remedies, elect by written notice to Sellers given prior to Closing, in which event (a) the Deposit shall be returned to Buyer, (b) Sellers shall reimburse Buyer’s actual out-of-pocket costs and expenses (including its attorneys’ fees and costs) incurred by Buyer or its affiliates in connection with the purchase of the Property and the transaction contemplated under this Agreement, such reimbursement not to exceed Seven Hundred Fifty Thousand and No/100 Dollars ($750,000.00) in the aggregate, and (c) upon Buyer’s receipt of the Deposit, this Agreement shall terminate and neither party shall have any further liability hereunder except for those liabilities that expressly survive a termination of this Agreement; or (ii) Buyer may, within five sixty (560) Business Days days following the scheduled Closing Date, file an action for specific performance. Except with respect to either the obligations and liabilities of Sellers that expressly survive the termination of this Agreement or Closing, Buyer shall have no other remedy for any default by Sellers under this Agreement. In the event of the failure of any condition precedent to Buyer’s obligation to close expressly herein set forth, or in the event of the untruth or inaccuracy, in any material respect, of any Seller Representation as of the Closing Date (a) subject to the limitations contained herein), Buyer’s sole remedy hereunder, at law or in equity, shall be to elect to waive such condition and proceed to Closing or terminate this AgreementAgreement by delivery of written notice to Sellers on or prior to Closing (or such sooner date as may be herein specified), in which event Sellers the Deposit shall be obligated returned to promptly reimburse Purchaser Buyer, and neither party shall have any further liability hereunder except for its actual out of pocket costs incurred in connection with this Agreement or the Property including, but not limited to, the negotiation those liabilities that expressly survive a termination of this Agreement, Purchaser’s due diligence with respect to the Property, Purchaser’s financing with respect to the Property (including, but not limited to, good faith deposits, commitment fees, and costs of hedging and other rate lock contracts), and all of Purchaser’s legal fees and expenses related thereto, not to exceed; provided, however, $700,000.00 with respect to the foregoing shall be without limitation on the rights of Buyer under this Agreement and the Other Property Agreements Section in the aggregateevent any such condition precedent fails or such Seller Representation is untrue or inaccurate in any material respect as of the Contract Date (and, and Purchaser shall receive from in the Title Company event of any Seller Representation made to Sellers’ knowledge, Sellers had actual knowledge of such untruth or inaccuracy as of the Xxxxxxx Money DepositContract Date) or becomes untrue or inaccurate in any material respect, whereupon as a result of a default by any Seller under an express obligation or covenant of Sellers and Purchaser will have no further rights or obligations under set forth in this Agreement, except with respect to . In the Termination Surviving Obligations, or (b) pursue event Buyer seeks specific performance of this Agreementin accordance with the terms hereof, so long as Buyer may elect to bring any suit, action or proceeding commenced by Purchaser against Sellers shall be filed and served within thirty (30) days of for specific performance in the scheduled Closing Date, and, in either event, Purchaser hereby waives all other remedies, including without limitation, any claim against Sellers for damages of any type or kind including, without limitation, consequential or punitive damages. Unless otherwise expressly required pursuant to this Agreement, in no event shall Sellers be obligated to undertake any of the following (A) change the condition state where a portion of the Property is located and as to which specific performance is sought, and each party hereby waives any objections which it may now or restore hereafter have based on venue and/or forum non-conveniens of any such suit, action or proceedings and submits to the same after any fire or casualty; (B) expend money or post a bond to remove or insure over anything other than a Must-Cure Matter or to correct any matter shown on a survey jurisdiction of the Property; (C) secure state or federal court located in any permit with respect to county where such portion of the Property or Sellers’ conveyance thereof; or (D) expend any money to repair, improve or alter is located. All of the Improvements or any portion thereof. Notwithstanding the foregoing, nothing foregoing contained in this Section 13.1 will limit Purchaser’s 16.1 shall be without limitation upon the rights and remedies of Buyer hereunder, at lawlaw or in equity, in equity or as herein provided in the event of a breach default by Sellers any Seller pursuant to Sections 18 and 20 or of any covenant, agreement, indemnity, representation or warranty of any Seller that survives the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after termination, subject to the terms and provisions termination of this Agreement.

Default by Sellers. Notwithstanding If the transaction herein provided as to any provision Property or Properties shall not close on account of any Seller’s default in the performance of its obligations under this Agreement to the contrary, if Closing or on account of the purchase and sale transaction provided for herein does not occur as herein provided by reason breach of any of the representations and warranties of a Seller under this Agreement, and if such Seller fails to cure such default of Sellersor breach within five (5) business days after written notice from Buyer (and the Closing shall be extended to allow for such cure period), Purchaser maythen, Buyer shall elect, as Purchaser’s its sole and exclusive remedy for such default, one of the following remedies, elect : (i) terminate this Agreement by written notice to Sellers delivered within five (5) Business Days following business days after the scheduled Closing Dateexpiration of any cure period, either with regard to either the Property affected or with regard to all of the Properties (a) terminate this Agreementsubject to Section 10.11), in which event (x) the Applicable Share(s) of the Escrow Deposit or the entire Escrow Deposit, as applicable, shall be returned to Buyer, and thereafter both Buyer and Sellers shall thereupon be obligated to promptly reimburse Purchaser for its actual out of pocket costs incurred in connection with this Agreement or the Property including, but not limited to, the negotiation of this Agreement, Purchaser’s due diligence with respect to the Property, Purchaser’s financing with respect to the Property (including, but not limited to, good faith deposits, commitment fees, and costs of hedging and other rate lock contracts), and released from all of Purchaser’s legal fees and expenses related thereto, not to exceed, however, $700,000.00 obligations with respect to this Agreement and as it relates to the Other affected Property Agreements in or to all of the aggregateProperties, as applicable, except as otherwise expressly provided herein, and Purchaser (y) damages equal to Buyer’s actual out-of-pocket costs (including reasonable attorneys fees) incurred in connection with the transactions contemplated herein, in an amount not to exceed One Hundred Thousand and No/100 Dollars ($100,000) per Property terminated, shall receive from the Title Company the Xxxxxxx Money Deposit, whereupon Sellers and Purchaser will have no further rights or obligations under this Agreement, except be paid by each defaulting Seller upon receipt of a written demand by Buyer together with respect to the Termination Surviving Obligationswritten evidence of such costs, or (bii) pursue provided that Buyer shall have fully performed its obligations hereunder and shall be ready, willing and able to close, treat this Agreement as being in full force and effect, in which case Buyer shall have the right to bring an action against the applicable Seller(s) (and, in the case of the sale of the South San Francisco Hotel, against SSF Landing) for specific performance of this Agreementas to the affected Property(ies), so long as any such action or proceeding is commenced by Purchaser against Sellers shall be filed and served within thirty sixty (3060) days after the Closing Date (or in the case of the scheduled Closing South San Francisco Hotel, the Outside Date, and, in either event, Purchaser hereby waives all other remedies, including without limitation, any claim against Sellers for damages of any type or kind including, without limitation, consequential or punitive damages. Unless otherwise expressly required pursuant to this Agreement, in no event shall Sellers be obligated to undertake any of the following (A) change the condition of the Property or restore the same after any fire or casualty; (B) expend money or post a bond to remove or insure over anything other than a Must-Cure Matter or to correct any matter shown on a survey of the Property; (C) secure any permit with respect to the Property or Sellers’ conveyance thereof; or (D) expend any money to repair, improve or alter the Improvements or any portion thereof. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in the event of a breach by Sellers of any of the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after termination, subject to the terms and provisions of this Agreement).

Default by Sellers. Notwithstanding any provision in this Agreement to In the contrary, if event a Closing of the purchase and sale transaction provided for herein does not occur as herein provided by reason of any due to a Seller’s default of Sellershereunder, and Purchaser is not in material default under this Agreement, Purchaser mayshall be entitled, as Purchaser’s its sole and exclusive remedies, elect by written notice to Sellers within five (5) Business Days following the scheduled Closing Dateremedy, to either (a) terminate this AgreementAgreement in entirety (provided that such termination shall have no effect upon any Closings that occurred prior to the date of such termination or the provisions of this Agreement that survive such Closings by their terms) and receive the return of the Aggregate Deposit (or the portion thereof then held by Escrow Agent), in which event Sellers shall be obligated pay Purchaser the actual costs and expenses, not to promptly reimburse exceed the Pursuit Costs Cap, incurred by Purchaser in performing its due diligence investigations of the Property, in negotiating this Agreement, and in obtaining financing for its actual out Purchaser’s acquisition of pocket costs the Property (including reasonable attorneys’ fees and expenses incurred in connection with all of the foregoing) (collectively, the “Pursuit Costs”), which return of the Deposit and payment of the Pursuit Costs to Purchaser shall operate to terminate this Agreement and release Sellers and Purchaser from any and all liability hereunder, or the Property including, but not limited to, the negotiation of (b) terminate this Agreement, Purchaser’s due diligence Agreement only with respect to the PropertyCompany that is subject to the applicable Closing and receive the return of the Deposit allocated to such Company on Schedule 2.5(b), Purchaser’s financing in which event Sellers shall pay Purchaser the Pursuit Costs not to exceed the Pursuit Costs Cap, which return of the Deposit and payment of the Pursuit Costs to Purchaser shall cause such Company to be a Terminated Company and the provisions of Section 11.19 shall apply with respect to such Terminated Company, or (c) to enforce specific performance of the Property (including, but not limited to, good faith deposits, commitment fees, and costs of hedging and other rate lock contracts), and all of Purchaserapplicable defaulting Seller’s legal fees and expenses related thereto, not to exceed, however, $700,000.00 with respect to this Agreement and the Other Property Agreements in the aggregate, and Purchaser shall receive from the Title Company the Xxxxxxx Money Deposit, whereupon Sellers and Purchaser will have no further rights or obligations under this Agreement, except with respect and if Purchaser prevails in an action for specific performance, Purchaser shall also be entitled to an award of damages in an amount equal to the Termination Surviving Obligationsaggregate net operating income derived from the applicable Seller’s Company’s Property during the period commencing on the date on which the applicable Closing was scheduled to occur and ending on the date on which such Seller’s Membership Interests in its respective Company are actually conveyed to Purchaser, or (b) pursue specific performance of this Agreement, so long as any action or proceeding commenced by Purchaser against Sellers shall be filed and served within thirty (30) days of the scheduled Closing Date, and, in either event, Purchaser hereby waives all other remedies, including without limitation, any claim against Sellers for damages of any type or kind including, without limitation, consequential or punitive damages. Unless otherwise expressly required pursuant to this Agreement, in no event shall Sellers be obligated to undertake any of the following (A) change the condition of the Property or restore the same after any fire or casualty; (B) expend money or post a bond to remove or insure over anything other than a Must-Cure Matter or to correct any matter shown on a survey of the Property; (C) secure any permit with respect to the Property or Sellers’ conveyance thereof; or (D) expend any money to repair, improve or alter the Improvements or any portion thereof. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in the event of a breach by Sellers of any of the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after termination, subject to the terms and provisions of this Agreement.that

Default by Sellers. Notwithstanding any provision in this Agreement to the contrary, if Closing of the purchase and sale transaction provided for herein does not occur as herein provided by reason of any default of Sellers, Purchaser may, as Purchaser’s sole and exclusive remedies, elect by written notice to Sellers within five (5) Business Days following the scheduled Closing Date, to either (a) terminate this Agreement, in which event Sellers shall be obligated to promptly reimburse Purchaser for its actual out of pocket costs incurred in connection with this Agreement or the Property including, but not limited to, the negotiation of this Agreement, Purchaser’s due diligence with respect to the Property, Purchaser’s financing with respect to the Property (including, but not limited to, good faith deposits, commitment fees, and costs of hedging and other rate lock contracts), and all of Purchaser’s legal fees and expenses -42- related thereto, not to exceed, however, $700,000.00 with respect to this Agreement and the Other Property Agreements in the aggregate, and Purchaser shall receive from the Title Company the Xxxxxxx Money Deposit, whereupon Sellers and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations, or (b) pursue specific performance of this Agreement, so long as any action or proceeding commenced by Purchaser against Sellers shall be filed and served within thirty (30) days of the scheduled Closing Date, and, in either event, Purchaser hereby waives all other remedies, including without limitation, any claim against Sellers for damages of any type or kind including, without limitation, consequential or punitive damages. Unless otherwise expressly required pursuant to this Agreement, in no event shall Sellers be obligated to undertake any of the following (A) change the condition of the Property or restore the same after any fire or casualty; (B) expend money or post a bond to remove or insure over anything other than a Must-Cure Matter or to correct any matter shown on a survey of the Property; (C) secure any permit with respect to the Property or Sellers’ conveyance thereof; or (D) expend any money to repair, improve or alter the Improvements or any portion thereof. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in the event of a breach by Sellers of any of the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after termination, subject to the terms and provisions of this Agreement.

Default by Sellers. Notwithstanding In the event that any provision in Seller fails to consummate any Closing of a Property for any reason other than a Purchaser’s Default, a failure of a condition precedent to such Seller’s obligation to proceed to Closing (that was not caused by a Seller or its representatives or affiliates), or the permitted termination of this Agreement by either Seller or Purchaser as herein expressly provided, Purchaser’s sole and exclusive remedy shall be to elect one of the following: (a) to terminate this Agreement by written notice thereof to Sellers provided no later than the date of the applicable Closing, in which event Purchaser shall be entitled to the return by Escrow Agent to Purchaser of the Xxxxxxx Money then on deposit with Escrow Agent and Sellers shall pay Purchaser the actual out-of-pocket costs and expenses incurred by Purchaser in performing its due diligence investigations of the Properties, in negotiating this Agreement, and in obtaining financing for Purchaser’s acquisition of the Properties (including reasonable attorneys’ fees) and expenses incurred in connection with all of the foregoing, but not to exceed $500,000 in the aggregate (collectively, “Pursuit Costs”); or (b) to bring a suit for specific performance for all Properties (except for any Withdrawn Property or any Property previously acquired by Purchaser in a prior Closing), provided that any suit for specific performance must be brought as to all Properties (except for any Withdrawn Property or any Property previously acquired by Purchaser in a prior Closing) within forty-five (45) days of Sellers’ default, Purchaser’s waiving the right to bring suit for less than all of the Properties or at any later date to the extent permitted by law. Purchaser hereby waives the right to seek to enforce any other remedy against Sellers, including without limitation a suit for monetary damages and waives the right to file a lis pendens or other similar notice against any Real Property except in connection with a suit for specific performance commenced pursuant to this Section. Notwithstanding the foregoing provisions of this Section 10.2 to the contrary, if Closing of the purchase and sale transaction provided (i) Purchaser pursues an action for herein does not occur as herein provided by reason of any default specific performance against a Seller within forty-five (45) days of Sellers’ default, Purchaser may, (ii) specific performance is not available as Purchaser’s sole a remedy because such Seller has willfully and exclusive remedies, elect by written notice to Sellers within five (5) Business Days following the scheduled Closing Date, to either (a) terminate this Agreement, in which event Sellers shall be obligated to promptly reimburse Purchaser for its actual out of pocket costs incurred in connection with this Agreement or deliberately transferred the Property includingto a third party, but and (iii) Purchaser was not limited to, in default under the negotiation terms of this Agreement, Purchaserall conditions precedent to such Seller’s due diligence with respect obligation to the Propertyproceed to Closing were satisfied and Sellers did not validly terminate this Agreement (and Sellers have not raised in good faith an allegations of a Purchaser default or a failure of a condition precedent), Purchaser’s financing with respect then Purchaser shall have a right to the Property seek actual damages (including, but not limited to, good faith deposits, commitment fees, and costs of hedging and other rate lock contracts), and all of Purchaser’s legal fees and expenses related thereto, not to exceed, however, $700,000.00 with respect to this Agreement and the Other Property Agreements in the aggregate, and Purchaser shall receive from the Title Company the Xxxxxxx Money Deposit, whereupon Sellers and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations, or (b) pursue specific performance of this Agreement, so long as any action or proceeding commenced by Purchaser against Sellers shall be filed and served within thirty (30) days of the scheduled Closing Date, and, in either event, Purchaser hereby waives all other remedies, including without limitation, any claim against Sellers for damages of any type or kind including, without limitation, consequential or punitive damages. Unless otherwise expressly required pursuant to this Agreement, ) in no event shall Sellers be obligated to undertake any excess of the following (A) change the condition of the Property or restore the same after any fire or casualty; (B) expend money or post a bond to remove or insure over anything other than a Must-Cure Matter or to correct any matter shown on a survey of the Property; (C) secure any permit with respect to the Property or Sellers’ conveyance thereof; or (D) expend any money to repair, improve or alter the Improvements or any portion thereof. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in the event of a breach by Sellers of any of the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after termination, subject to the terms and provisions of this AgreementPursuit Costs.

Default by Sellers. Notwithstanding (a) If the Closing does not occur due to (i) any provision representation or warranty of any Seller contained in Article III, being inaccurate in any material respect when made or deemed made (without limiting the effect of Section 6.5), or (ii) the failure or inability of any Seller to perform its obligations hereunder in any material respect, which, in either case, is not cured within fifteen (15) days after notice thereof from Purchaser (which fifteen (15) day period shall, if necessary, automatically extend the Closing Date to the expiration date of such fifteen (15) day period), and if individually or in the aggregate, the Losses incurred by the Purchaser Indemnified Parties resulting from such inaccuracies or nonperformances described in clauses (i) and (ii) of this sentence reasonably would be expected to exceed Five Million Dollars ($5,000,000) (the "Threshold Amount"), so long as all conditions precedent to Sellers' obligations hereunder have been satisfied (other than any conditions precedent which are not satisfied due to the default by any Seller), then Purchaser, as its sole and exclusive remedy, shall elect either (x) to terminate this Agreement, and the provisions of Section 8.6 which expressly survive a termination of this Agreement, and all other rights and obligations of the parties hereunder (except those set forth in this clause (x)) shall terminate immediately; (y) to irrevocably waive such default, nonperformance, inaccuracy or breach and proceed to Closing with reduction in the HdC Interest Purchase Price equal to the reasonably estimated Losses over and above the Deductible (but in no event more than $4,000,000); or (z) to commence an action for specific performance; provided, however, that the remedy of specific performance shall be available to Purchaser only in the case of a willful refusal to close by Sellers and in the event Purchaser files a suit for specific performance within forty-five (45) days following the Closing Date, failing which, Purchaser shall be barred from enforcing Sellers' obligations in such manner and shall be deemed to have elected to terminate this Agreement pursuant to clause (x). Notwithstanding anything contained in Section 2.5 to the contrary, if Closing SHC shall be an express third party beneficiary of clause (z) of the purchase preceding sentence and sale transaction shall be entitled to specifically enforce Sellers' obligations as therein provided unless Purchaser has elected either of the remedies set forth in clauses (x) ,(y) or (z) of the preceding sentence, provided Purchaser would otherwise be obligated to close and SHC and Purchaser are ready, willing and able to close under the SHC Agreement but for herein does not occur as herein provided by reason of any default of Sellers' willful refusal to close hereunder. In the event that Purchaser elects to terminate this Agreement pursuant to clause (x) above, Purchaser may, as Purchaser’s sole and exclusive remedies, Sellers may elect by written notice to Sellers within five two (52) Business Days following after receipt of Purchaser's notice to nullify Purchasers' notice of termination by agreeing to reduce the scheduled Closing DateHdC Interest Purchase Price by the reasonably estimated Losses over and above the Deductible, to either (a) terminate this Agreement, in which event Sellers whereupon Purchaser shall be obligated to promptly reimburse Purchaser for proceed to Closing. (b) If (i) any representation or warranty of any Seller contained in Article III shall be inaccurate in any material respect when made or deemed made (without limiting the effect of Section 6.5), or (ii) any Seller defaults in the performance of any of its actual out of pocket costs incurred in connection with obligations under this Agreement in any material respect which are performable prior to Closing, and if the aggregate Losses incurred by the Purchaser Indemnified Parties resulting from such inaccuracies or the Property including, but not limited to, the negotiation nonperformances described in clauses (i) and (ii) of this Agreementsentence reasonably would not be expected to exceed the Threshold Amount, then, assuming that all of the other conditions set forth in Section 6.1 have been satisfied, and provided such inaccuracy or such default is not the result of any intentional misconduct on the part of any Seller, Purchaser shall be obligated to proceed to Closing with no reduction in the HdC Interest Purchase Price, and Purchaser’s due diligence 's sole and exclusive remedies with respect thereto shall be as provided in Sections 10.3 and 10.4 (with the Losses incurred by the Purchaser Indemnified Parties shall be carried forward and applied against the Deductible with respect to the Property, Purchaser’s financing with respect to the Property (including, but not limited to, good faith deposits, commitment fees, and costs of hedging and other rate lock contractsSurviving Claims), and all of Purchaser’s legal fees and expenses related thereto, not to exceed, however, $700,000.00 with respect to this Agreement and the Other Property Agreements in the aggregate, and Purchaser shall receive from the Title Company the Xxxxxxx Money Deposit, whereupon Sellers and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations, or (b) pursue specific performance of this Agreement, so long as any action or proceeding commenced by Purchaser against Sellers shall be filed and served within thirty (30) days of the scheduled Closing Date, and, in either event, Purchaser hereby waives all other remedies, including without limitation, any claim against Sellers for damages of any type or kind including, without limitation, consequential or punitive damages. Unless otherwise expressly required pursuant to this Agreement, in no event shall Sellers be obligated to undertake any of the following (A) change the condition of the Property or restore the same after any fire or casualty; (B) expend money or post a bond to remove or insure over anything other than a Must-Cure Matter or to correct any matter shown on a survey of the Property; (C) secure any permit with respect to the Property or Sellers’ conveyance thereof; or (D) expend any money to repair, improve or alter the Improvements or any portion thereof. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in the event of a breach by Sellers of any of the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after termination, subject to the terms and provisions of this Agreement.

Default by Sellers. Notwithstanding any provision in this Agreement to If the contrary, if Closing of the purchase and sale transaction provided for herein does shall not occur as herein provided by reason of either or both Sellers’ default under this Agreement or the failure of satisfaction of the conditions benefiting Buyer under Section 4 above or the termination of this Agreement in accordance with Section 4 or Section 6 herein, then the Deposit (less the Independent Consideration, which shall be paid to Sellers) shall be returned to Buyer, and neither party shall have any default further obligation or liability to the other (other than those obligations that expressly survive a termination of this Agreement); provided, however, if the Closing shall not occur by reason of either or both of Sellers’ default, Purchaser may, then Buyer shall be entitled as Purchaser’s its sole and exclusive remedies, elect by written notice to Sellers within five (5) Business Days following the scheduled Closing Date, remedy to either (a) terminate specifically enforce this Agreement, in which event Sellers shall but an action for specific performance must be obligated commenced within sixty (60) days after the last scheduled Closing Date pursuant to promptly reimburse Purchaser for its actual out the terms of pocket costs incurred in connection with this Agreement or the Property including, but not limited to, the negotiation of this Agreement, Purchaser’s due diligence with respect to the Property, Purchaser’s financing with respect to the Property (including, but not limited to, good faith deposits, commitment fees, and costs of hedging and other rate lock contracts), and all of Purchaser’s legal fees and expenses related thereto, not to exceed, however, $700,000.00 with respect to this Agreement and the Other Property Agreements in the aggregate, and Purchaser shall receive from the Title Company the Xxxxxxx Money Deposit, whereupon Sellers and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligationsbe forever barred, or (b) pursue terminate this Agreement and obtain a return of the Deposit (less the Independent Consideration, which shall be paid to Sellers), but no other action, for damages or otherwise, shall be permitted. In the event that specific performance of is not available and Buyer terminates this Agreement, so long as any action or proceeding commenced by Purchaser against Sellers shall be filed and served within thirty (30) days of the scheduled Closing Date, and, in either event, Purchaser hereby waives all other remedies, including without limitation, any claim against Sellers for damages of any type or kind including, without limitation, consequential or punitive damages. Unless otherwise expressly required Agreement pursuant to this Section 9.1, then Sellers shall reimburse Buyer’s reasonable, actual out-of-pocket fees and expenses incurred by Buyer in connection with its inspection and investigation of the Properties, including Buyer’s attorneys’ fees and expenses incurred in connection with the negotiation of this Agreement and the Access Agreement, in no event an aggregate amount not to exceed One Hundred Thousand and No/100 U.S. Dollars ($100,000.00) (the “Pursuit Costs”); provided, however, such Pursuit Costs shall not preclude Buyer from collecting attorneys’ fees in connection with a suit or other proceeding against Sellers be obligated pursuant to undertake Section 10.10 hereof if Buyer is the prevailing party in any of the following (A) change the condition of the Property or restore the same after any fire or casualty; (B) expend money or post a bond to remove or insure over anything other than a Must-Cure Matter or to correct any matter shown on a survey of the Property; (C) secure any permit with respect to the Property or Sellers’ conveyance thereof; or (D) expend any money to repair, improve or alter the Improvements or any portion thereof. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in the event of a breach by Sellers of any of the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after termination, subject to the terms and provisions of this Agreementsuch action.

Default by Sellers. Notwithstanding any provision in this Agreement to the contrary, if If Closing of the purchase and sale transaction provided for herein does not occur as herein provided by reason of any default of Sellers, Purchaser may, as Purchaser’s sole and exclusive remedies, elect by written notice to Sellers within five (5) Business Days days following the scheduled Closing Date, to either (a) terminate this Agreement, in which event Sellers shall be obligated to promptly reimburse Purchaser for its actual out of pocket costs incurred in connection with this Agreement or the Property including, but not limited to, the negotiation of this Agreement, Purchaser’s due diligence with respect to the Property, Purchaser’s financing with respect to the Property (including, but not limited to, good faith deposits, commitment fees, and costs of hedging and other rate lock contracts), and all of Purchaser’s legal fees and expenses related thereto, not to exceed, however, $700,000.00 with respect to this Agreement and the Other Property Agreements in the aggregate, and Purchaser shall will receive from the Title Company the Xxxxxxx Money Deposit, whereupon Sellers and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations, or (b) pursue specific performance of this Agreement, so long as any action or proceeding commenced by Purchaser against Sellers shall be filed and served within thirty ninety (3090) days of the scheduled Closing Date, and, in either event, Purchaser hereby waives all other remedies, including without limitation, any claim against Sellers for damages of any type or kind including, without limitation, consequential or punitive damages. Unless otherwise expressly required pursuant to this Agreement, in no event shall Sellers be obligated to undertake any of the following (A) change the condition of the Property or restore the same after any fire or casualty; (B) expend money or post a bond to remove or insure over anything other than a Must-Cure Matter or to correct any matter shown on a survey of the Property; (C) secure any permit permit, approval, or consent with respect to the Property or Sellers’ conveyance thereof; or (D) expend any money to repair, improve or alter the Improvements or any portion thereof. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in the event of a breach by Sellers of any of the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after termination, subject to the terms and provisions of this Agreement.