Purchaser’s Remedies. If Seller fails to satisfy any condition to Closing set forth in Sections 8.1.1 or 8.1.2 (provided that with respect to any failure to satisfy the condition to Closing set forth in Section 8.1.2, such failure is the result of an act or omission reasonably within Seller’s control or a breach of this Agreement by Seller), and such failure is not waived by Purchaser, or Seller otherwise defaults in its obligation to close under this Agreement, and any such failure or default continues for five (5) business days following Seller’s receipt of written notice of such default from Purchaser, Purchaser’s sole remedy therefor shall be to either (a) bring an action for specific performance of Seller’s obligation under this Agreement to deliver the documents required under Section 9.1 above, provided that any action for specific performance must be initiated no later than sixty (60) days after the date that Closing is otherwise required to occur under this Agreement; or (b) terminate this Agreement by written notice to Seller (which notice shall indicate that a Seller default is alleged by Purchaser) and receive the entire Deposit and reimbursement from Seller of Purchaser’s Costs, in which event neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreement. Notwithstanding anything to the contrary in this Agreement, to the full extent permitted by law, Purchaser waives, and Seller shall not be liable to Purchaser for, any claim against Seller for loss of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In the event that Purchaser elects to seek specific performance under this Section 12.2, 37 Seller shall not be obligated to expend any money to change the condition of the Property or the state of title of the Property except as otherwise required by this Agreement. Notwithstanding the foregoing provisions of this Section 12.2, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition set forth in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19, and this Agreement shall automatically terminate upon the failure of such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit to Purchaser, and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreement.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (IMH Financial Corp)
Purchaser’s Remedies. If The obligation of Purchaser to close the transaction contemplated hereby is, at Purchaser's option, further subject to all representations of Seller fails to satisfy any condition to Closing set forth contained in Sections 8.1.1 or 8.1.2 (provided that with respect to any failure to satisfy the condition to Closing set forth in Section 8.1.2, such failure is the result of an act or omission reasonably within Seller’s control or a breach of this Agreement being true and correct in all material respects on and as of the Effective Date and the Closing Date and all obligations of Seller to have been performed on or before the Closing Date having been timely and duly performed. Upon default by Seller), and such failure is not waived by Purchaser, or Seller otherwise defaults in its obligation to close under convey the Premises, Purchaser's may, by notice to Seller, elect either (i) to terminate this Agreement, and any such failure or default continues for five (5ii) business days following Seller’s receipt of written notice of such default from Purchaser, Purchaser’s sole remedy therefor shall be to either (a) bring an action for seek specific performance of Seller’s 's obligation under to convey the Assets. If this Agreement is terminated by Purchaser pursuant to deliver this Section 6.4, the documents required under Section 9.1 above, provided that any action for specific performance must Deposit shall be initiated no later than sixty (60) days after the date that Closing is otherwise required returned to occur under this Agreement; or (b) terminate Purchaser and thereupon this Agreement shall be terminated. The failure of a condition precedent caused by written notice to Seller (which notice shall indicate that the action or inaction of a Seller default is alleged by Purchaser) and receive third party not in the entire Deposit and reimbursement from Seller control of Purchaser’s Costs, in which event neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreement. Notwithstanding anything to the contrary in this Agreement, to the full extent permitted by law, Purchaser waives, and Seller shall not be liable to Purchaser fordeemed a default by Seller in the fulfillment of an obligation. IN NO EVENT SHALL SELLER, any claim against Seller for loss of business opportunityITS DIRECT OR INDIRECT PARTNERS, loss of profitsMEMBER OR MEMBERS OWNERS, loss of incomeOR AFFILIATES, economic loss or other special or consequential losses or damages or punitive damages. In the event that Purchaser elects to seek specific performance under this Section 12.2ANY OFFICER, 37 Seller shall not be obligated to expend any money to change the condition of the Property or the state of title of the Property except as otherwise required by this Agreement. Notwithstanding the foregoing provisions of this Section 12.2DIRECTOR, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition set forth in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19EMPLOYEE, and this Agreement shall automatically terminate upon the failure of such condition and/or closing deliveryATTORNEY, Escrow Agent shall promptly refund the Deposit to PurchaserOR AGENT OF THE FOREGOING, and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this AgreementOR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY, BEYOND ITS INTEREST IN THE REAL PROPERTY, FOR ANY CLAIM, CAUSE OF ACTION, OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY, OR OTHERWISE (COLLECTIVELY, THE "CLAIMS"), AND PURCHASER HEREBY WAIVES THE CLAIMS.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement
Purchaser’s Remedies. If (x) Seller fails shall default in any of its obligations to satisfy be performed on the Closing Date or (y) Seller shall default in the performance of any condition of its material obligations to be performed prior to the Closing set forth in Sections 8.1.1 or 8.1.2 (provided that Date and, with respect to any failure to satisfy the condition to Closing set forth in Section 8.1.2default under this clause (y) only, such failure is the result of an act or omission reasonably within default shall continue for twenty (20) days after notice to Seller’s control or a breach of this Agreement by Seller), and such failure is not waived by Purchaser, or Seller otherwise defaults in Purchaser as its obligation to close under this Agreement, and any such failure or default continues for five (5) business days following Seller’s receipt of written notice of such default from Purchaser, Purchaser’s sole remedy therefor shall be to either by reason thereof (a) bring in lieu of prosecuting an action for damages or proceeding with any other legal course of conduct, the right to bring such actions or proceedings being hereby expressly and voluntarily waived by Purchaser following and upon advice of its counsel) shall have the right (i) solely, in the event of a willful default by Seller, to seek to obtain specific performance of Seller’s obligation under this Agreement to deliver the documents required under Section 9.1 aboveobligations hereunder, provided that any action for specific performance must shall be initiated no later than commenced within sixty (60) days after the date that Closing is otherwise required to occur under this Agreement; notice of such default or (bii) to terminate this Agreement by written notice to Seller (which notice shall indicate that a Seller default is alleged by Purchaser) and receive a return of the entire Deposit and reimbursement from Seller Downpayment, it being understood that if Purchaser fails to commence an action for specific performance within sixty (60) days after such notice of default, Purchaser’s Costssole remedy shall be to receive a return of the Downpayment in accordance with Article 30 below. Upon such return of the Downpayment, in which event this Agreement shall terminate and neither Seller nor Purchaser party hereto shall have any further liability rights or obligation under obligations hereunder except for those that are expressly provided in this Agreement except as expressly provided for in this Agreementto survive the termination hereof. Notwithstanding anything to the contrary in this Agreement, to the full extent permitted by lawcontained herein, Purchaser waives, and Seller shall not be liable to Purchaser for, any claim against Seller for loss of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In only have the event that Purchaser elects right to seek specific performance under this Section 12.2, 37 if Seller shall not be obligated to expend any money to change the condition of the Property or the state of title of the Property except as otherwise required by this Agreementwillfully defaults. Notwithstanding the foregoing provisions of this Section 12.2, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition set forth in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19, and this Agreement shall automatically terminate upon the failure of such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit to Purchaser, and neither Seller nor Purchaser shall have no right of specific performance if Seller shall be prohibited from performing its obligations hereunder by reason of any further liability law, regulation, or obligation under this Agreement except as expressly provided for in this Agreementother legal requirement applicable to Seller or if Seller shall be unable to obtain the No Action Letter or the PSC Approval.
Appears in 2 contracts
Samples: Contract of Sale, Contract of Sale
Purchaser’s Remedies. If Seller fails to satisfy any condition perform its obligations pursuant to this Agreement at or prior to Closing set forth in Sections 8.1.1 for any reason except failure by Purchaser to perform hereunder, or 8.1.2 (provided that with respect to any failure to satisfy the condition if prior to Closing set forth any one or more of Seller's representations or warranties are breached in Section 8.1.2, such failure is the result of an act or omission reasonably within Seller’s control or a breach of this Agreement by Seller)any material respect, and such failure is not waived by Purchaser, or Seller otherwise defaults in its obligation to close under this Agreement, and any such if said failure or default breach continues for more than five (5) business days following Seller’s receipt of after written notice of such default from Purchaserthereof, Purchaser’s Purchaser shall elect, as its sole remedy therefor shall be remedy, either to either (a) bring an action for specific performance of Seller’s obligation under this Agreement to deliver the documents required under Section 9.1 above, provided that any action for specific performance must be initiated no later than sixty (60) days after the date that Closing is otherwise required to occur under this Agreement; or (bi) terminate this Agreement by giving Seller timely written notice of such election prior to Seller or at Closing and recover the Xxxxxxx Money, (which notice shall indicate that a Seller default is alleged by Purchaserii) and receive the entire Deposit and reimbursement from Seller of Purchaser’s Costs, enforce specific performance (in which event neither Seller nor Purchaser shall have any further liability not be required to submit such matter to arbitration as contemplated by Exhibit E, or obligation under this Agreement except as expressly provided for in this Agreement(iii) waive said failure or breach and proceed to Closing. Notwithstanding anything herein to the contrary contrary, Purchaser shall be deemed to have elected to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before thirty (30) days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within three (3) months following the scheduled Closing Date. Purchaser's remedies shall be limited to those described in this AgreementSection 10.2 and Sections 10.3 and 10.4 hereof. If, however, the equitable remedy of specific performance is not available, Purchaser may seek any other right or remedy available at law or in equity; provided, however, that in no event shall Seller's liability exceed $1,000,000.00. For purposes of this provision, specific performance shall be considered not available to Purchaser only if a court of competent jurisdiction determines conclusively that due solely to the full extent permitted by lawactions or omissions of Seller, Purchaser waivesis entitled to specific performance on the merits of its claim but said court is unable to enforce specific performance due to reasons beyond the control of the court, and Seller shall not be liable to Purchaser for, any claim against Seller for loss of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In the event that Purchaser elects to seek specific performance under this Section 12.2, 37 Seller shall not be obligated to expend any money to change the condition of the Property or the state of title of the Property except as otherwise required by this Agreement. Notwithstanding the foregoing provisions of this Section 12.2, Seller shall not be entitled to any notice from Purchaser nor any cure appeal period with respect to the closing condition set forth in Section 8.1.5 such determination has expired or the required Seller closing delivery set forth in Section 9.1.19an appeal has been denied, and this Agreement shall automatically terminate upon the failure of such condition and/or closing deliverywhichever is earlier. IN NO EVENT SHALL SELLER'S DIRECT OR INDIRECT PARTNERS, Escrow Agent shall promptly refund the Deposit to PurchaserSHAREHOLDERS, and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this AgreementOWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Berkshire Income Realty Inc), Purchase and Sale Agreement (Berkshire Income Realty Inc)
Purchaser’s Remedies. If Seller fails to satisfy any condition to Closing set forth in Sections 8.1.1 or 8.1.2 (provided that with respect to any failure to satisfy the condition to Closing set forth in Section 8.1.2, such failure is the result of an act or omission reasonably within Seller’s control or a breach of this Agreement by Seller), and such failure is not waived by Purchaser, or Seller otherwise defaults in its obligation to close under this Agreement, and any such failure or default continues for five (5) business days following Seller’s receipt of written notice of such default from Purchaser, Purchaser’s sole remedy therefor shall be to either (a) bring an action for specific performance of Seller’s obligation under this Agreement to deliver the documents required under Section 9.1 above, provided that any action for specific performance must be initiated no later than sixty (60) days after the date that Closing is otherwise required to occur under this Agreement; or (b) terminate this Agreement by written notice to Seller (which notice shall indicate that a Seller default is alleged by Purchaser) and receive the entire Deposit and reimbursement from Seller of Purchaser’s Costs, in which event neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreement. Notwithstanding anything to the contrary contained in this Agreement, if Seller fails to perform in accordance with the full extent permitted by lawterms of this Agreement, then Purchaser waivesmay, as its sole and exclusive remedy hereunder and at Purchaser’s option, (a) terminate this Agreement, in which event the Xxxxxxx Money Deposit shall be returned to Purchaser, this Agreement shall be null and void, and Seller neither party shall not be liable to Purchaser forhave any rights or obligations under this Agreement, any claim against Seller for loss except such rights and obligations that expressly survive the termination of business opportunitythis Agreement, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In the event that Purchaser elects to (b) seek specific performance of this Agreement or (c) if specific performance is not available as hereinafter provided, be entitled to receive the liquidated damages hereinafter specified. Purchaser’s failure to file an action seeking specific performance within twenty (20) days from such breach shall constitute its election to proceed under this Section 12.2clause (a) above. If specific performance is not legally available to Purchaser due to an intentional act of Seller (e.g., 37 Seller has sold the Property to another party) or failure to act by Seller (e.g., Seller fails to give notice of termination of the Unit Purchase Agreements), or if, upon the exercise of its right to specific performance, Purchaser shall not be obligated receive substantially the benefit of its bargain due to expend any money to change an intentional act of Seller (e.g., the condition of the Property or the state condition of title to the Property has materially changed directly due to an intentional act of Seller arising after the date of this Agreement), then in either such case, in addition to terminating this Agreement, Purchaser shall be entitled to liquidated damages equal to the difference between the Purchase Price and the proceeds of the sale of the Property except as otherwise required by this Agreement. Notwithstanding the foregoing provisions of this Section 12.2, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition set forth in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19, and this Agreement shall automatically terminate upon the failure of such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit to Purchaser, and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreementa third party.
Appears in 2 contracts
Samples: Agreement to Purchase Hotel, Agreement to Purchase Hotel (MHI Hospitality CORP)
Purchaser’s Remedies. If Seller defaults on its obligations hereunder, or Other Sellers default in their obligations under the Other Purchase and Sale Agreement, at or prior to Closing for any reason, or if prior to Closing any one or more of Seller’s, or, with respect to the Other Purchase and Sale Agreements, Other Sellers’, representations or warranties or covenants are breached in any material respect (subject to the provisions of Section 4.4 hereof and of the Other Purchase and Sale Agreements and the first sentence of Section 9.3 hereof and of the Other Purchase and Sale Agreements) and such default or breach is not cured by the earlier of the third (3rd) Business Day after written notice thereof from Purchaser or the Closing Date (except no notice or cure period shall apply if Seller fails to satisfy any condition consummate the sale of the Property hereunder or the Other Sellers fail to Closing set forth in Sections 8.1.1 or 8.1.2 consummate the sale of the other Acquired Properties pursuant to the Other Purchase and Sale Agreements), Purchaser shall elect, as its sole remedy hereunder, either to (provided that with respect to any failure to satisfy the condition to Closing set forth in Section 8.1.2, such failure is the result of an act or omission reasonably within Seller’s control or a breach of a) terminate this Agreement by Seller), and such failure is not waived by Purchaser, or Seller otherwise defaults in its obligation to close under this Agreement, and any such failure or default continues for five (5) business days following Seller’s receipt of entirety by giving Seller timely written notice of such default from Purchaserelection prior to or at Closing and recover the Xxxxxxx Money, Purchaser’s sole remedy therefor in which event Seller shall be liable to either Purchaser for its out of pocket expenses incurred in connection with the transaction contemplated hereby, but not to exceed $1,700,000.00 plus such all-in rate lock costs (aincluding, without limitation, swap and credit spreads) bring an action for specific performance of Seller’s obligation under this Agreement to deliver as Purchaser may have incurred in connection with the documents required under Section 9.1 aboveloan contemplated by the Fixed Rate Loan Term Sheet, provided that any action for specific performance must be initiated no later than sixty (60) days after the date that Closing is otherwise required to occur under this Agreement; or (b) terminate this Agreement by written notice in part with respect to Seller the Properties with respect to which Seller’s representations or warranties or covenants are breached (which notice shall indicate that a Seller default is alleged by Purchasersubject to Sections 7.2.1(4) and receive the entire Deposit and reimbursement from Seller of Purchaser’s Costs7.2.2(9)), in which event neither Seller nor Purchaser the Purchase Price shall have be reduced by the Allocated Purchase Price for such Properties, (c) enforce specific performance to consummate the sale of the Property hereunder, or (d) waive said failure or breach and proceed to Closing without any further liability or obligation under this Agreement except as expressly provided for reduction in this Agreementthe Purchase Price. Notwithstanding anything herein to the contrary in this Agreement, to the full extent permitted by lawcontrary, Purchaser waivesshall be deemed to have elected to terminate this Agreement in its entirety if Purchaser fails to deliver to Seller written notice of its intent to proceed otherwise on or before ten (10) Business Days following the scheduled Closing Date or, and Seller shall not be liable to Purchaser for, any claim against Seller for loss of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In the event having given notice that Purchaser elects it intends to seek specific performance under this Section 12.2performance, 37 Seller shall not be obligated fails to expend any money to change file a lawsuit asserting such claim or cause of action in New York County, New York within two months following the condition of the Property or the state of title of the Property except as otherwise required by this Agreementscheduled Closing Date. Notwithstanding the foregoing provisions of this Section 12.2EXCEPT FOR iSTAR’S POTENTIAL LIABILITY PURSUANT TO THE SELLER ESTOPPELS AND/OR THE MEZZANINE LOAN, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition set forth in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, and this Agreement shall automatically terminate upon the failure of such condition and/or closing deliverySHAREHOLDERS, Escrow Agent shall promptly refund the Deposit to PurchaserMEMBERS, and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this AgreementMANAGERS, OWNERS OR AFFILIATES, ANY OFFICER, MANAGER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.”
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Dividend Capital Total Realty Trust Inc.), Purchase and Sale Agreement (Istar Financial Inc)
Purchaser’s Remedies. If Seller defaults on its obligations hereunder, or Harborside Seller defaults in its obligations under the Harborside Purchase and Sale Agreement, at or prior to Closing for any reason, or if prior to Closing any one or more of Seller’s, or, with respect to the Harborside Purchase and Sale Agreement, Harborside Seller’s, representations or warranties or covenants are breached in any material respect (subject to the provisions of Section 4.4 hereof and of the Harborside Purchase and Sale Agreement and the first Sentence of Section 9.3 hereof and of the Harborside Purchase and Sale Agreement) and such default or breach is not cured by the earlier of the third (3rd) Business Day after written notice thereof from Purchaser or the Closing Date (except no notice or cure period shall apply if Seller fails to satisfy any condition consummate the sale of the Property hereunder or Harborside Seller fails to Closing set forth in Sections 8.1.1 or 8.1.2 consummate the sale of Harborside Membership Interests under the Harborside Purchase and Sale Agreement), Purchaser shall elect, as its sole remedy hereunder, either to (provided that with respect to any failure to satisfy the condition to Closing set forth in Section 8.1.2, such failure is the result of an act or omission reasonably within Seller’s control or a breach of a) terminate this Agreement by Seller), and such failure is not waived by Purchaser, or Seller otherwise defaults in its obligation to close under this Agreement, and any such failure or default continues for five (5) business days following Seller’s receipt of entirety by giving Seller timely written notice of such default from Purchaserelection prior to or at Closing and recover the Xxxxxxx Money, Purchaser’s sole remedy therefor in which event Seller shall be liable to either (a) bring an action Purchaser for specific performance its out of Seller’s obligation under this Agreement pocket expenses incurred in connection with the transaction contemplated hereby, but not to deliver the documents required under Section 9.1 aboveexceed $1,700,000.00, provided that any action for specific performance must be initiated no later than sixty (60) days after the date that Closing is otherwise required to occur under this Agreement; or (b) terminate this Agreement by written notice in part with respect to Seller the Properties with respect to which Seller’s representations or warranties or covenants are breached (which notice shall indicate that a Seller default is alleged by Purchasersubject to Sections 7.2.1(4) and receive the entire Deposit and reimbursement from Seller of Purchaser’s Costs7.2.2(9)), in which event neither Seller nor Purchaser the Purchase Price shall have be reduced by the Allocated Purchase Price for such Properties, (c) enforce specific performance to consummate the sale of the Property hereunder, or (d) waive said failure or breach and proceed to Closing without any further liability or obligation under this Agreement except as expressly provided for reduction in this Agreementthe Purchase Price. Notwithstanding anything herein to the contrary in this Agreement, to the full extent permitted by lawcontrary, Purchaser waivesshall be deemed to have elected to terminate this Agreement in its entirety if Purchaser fails to deliver to Seller written notice of its intent to proceed otherwise on or before ten (10) Business Days following the scheduled Closing Date or, and Seller shall not be liable to Purchaser for, any claim against Seller for loss of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In the event having given notice that Purchaser elects it intends to seek specific performance under this Section 12.2performance, 37 Seller shall not be obligated fails to expend any money to change file a lawsuit asserting such claim or cause of action in New York County, New York within two months following the condition of the Property or the state of title of the Property except as otherwise required by this Agreementscheduled Closing Date. Notwithstanding the foregoing provisions of this Section 12.2EXCEPT FOR iSTAR’S POTENTIAL LIABILITY PURSUANT TO THE SELLER ESTOPPELS AND/OR THE MEZZANINE LOAN, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition set forth in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, and this Agreement shall automatically terminate upon the failure of such condition and/or closing deliverySHAREHOLDERS, Escrow Agent shall promptly refund the Deposit to PurchaserMEMBERS, and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this AgreementMANAGERS, OWNERS OR AFFILIATES, ANY OFFICER, MANAGER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Dividend Capital Total Realty Trust Inc.), Purchase and Sale Agreement (Istar Financial Inc)
Purchaser’s Remedies. If Seller fails to satisfy any condition to Closing set forth The provisions of Section 12.1(b) notwithstanding, in Sections 8.1.1 or 8.1.2 (provided that with respect to any failure to satisfy the condition to Closing set forth in Section 8.1.2, such failure is the result event of an act or omission reasonably within Seller’s control or a material breach of this Agreement by Seller), and such failure is not waived by Purchaser, or Seller otherwise defaults in its and/or if all conditions precedent to Seller's obligation to close under the purchase of Casino Assets as set forth in Section 8.1 are satisfied on the Closing Date, or if all conditions precedent to Seller's obligation to close the purchase of the Hotel Assets are satisfied on the Hotel Closing Date, and Seller fails to close in accordance with this Agreement, and any such failure or default continues for five (5) business days following Seller’s receipt the Purchaser shall not be limited to the remedy of written notice termination of such default from Purchaserthis Agreement, Purchaser’s sole remedy therefor but shall be entitled to either (a) bring an action for pursue monetary damages up to the amount of the Subordinated Debt and/or specific performance of this Agreement. Provided, however, the Purchaser shall not execute on any monetary judgment obtained by it against the Seller (except one obtained in connection with Seller’s obligation 's obligations under this Agreement Section 4.6(a) and/or (b)) pursuant to the foregoing until Seller has paid the Principal Loan and Subordinated Note in full or it has otherwise been satisfied or assigned. Notwithstanding the foregoing, in the event that the closing does not occur due to (i) the failure of Seller and/or Seller's parent, Alpha Hospitality Corporation, to obtain on or before the Closing Date, the approval of the transaction contemplated herein by their respective shareholders provided in Section 8.2(e); (ii) Seller, its parent or any other subsidiary of its parent are the subject of bankruptcy proceedings; or (iii) the Seller fails to deliver the documents required under Casino Assets as pro- vided in Section 9.1 above, provided that any action for specific performance must be initiated no later than sixty (60) days after 5.1 of the date that Closing is otherwise required to occur under this Agreement; or (b) terminate this Agreement by written notice to Seller (which notice shall indicate that a Seller default is alleged by Purchaser) and receive the entire Deposit and reimbursement from Seller of Purchaser’s Coststhen, in which event neither Seller nor such event, Purchaser shall have any further liability or obligation under this Agreement except as expressly be immediately entitled to damages in the amount of One Million Dollars ($1,000,000.00) in addition to all other damages and remedies provided for in this AgreementSection. Notwithstanding anything In addition to the contrary in this Agreementforegoing, to the full extent permitted by law, Purchaser waives, and Seller shall not be liable to Purchaser for, any claim against Seller for loss of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In the event that Purchaser elects to seek specific performance under this Section 12.2, 37 Seller shall not be obligated to expend any money to change the condition of the Property or the state of title of the Property except as otherwise required by this Agreement. Notwithstanding the foregoing provisions of this Section 12.2, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition set forth recover all of its reasonable costs and expenses incurred in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19pursuing either of these remedies (including, and this Agreement shall automatically terminate upon the failure of such condition and/or closing deliverywithout limitation, Escrow Agent shall promptly refund the Deposit to Purchaser, and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreementreasonable attorneys' fees).
Appears in 1 contract
Samples: Asset Purchase Agreement (Greenville Casino Partners L P)
Purchaser’s Remedies. If Seller fails to satisfy perform its material obligations pursuant to this Agreement for any condition reason except for the failure of Purchaser to Closing set forth in Sections 8.1.1 perform hereunder or 8.1.2 (provided that with respect to any failure to satisfy the condition to Closing set forth in Section 8.1.2, such failure is the result of an act or omission reasonably within Seller’s control or a breach termination of this Agreement by Seller), and such failure is not waived by Purchaseras provided herein, or Seller otherwise defaults if prior to Closing any one or more of Seller’s representations or warranties are breached or untrue in its obligation to close under this Agreement, any material respect and any such failure or default continues for five are not cured within ten (510) business days following SellerPurchaser’s receipt of written notice of such default from Purchaserthereof, Purchaser’s then Purchaser shall elect, as its sole remedy therefor shall be remedy, either to either (a) bring an action for enforce specific performance of Seller’s obligation under this Agreement to deliver the documents required under Section 9.1 above, (provided that any action for specific performance must be initiated filed no later than sixty forty-five (6045) days after the date that Closing is otherwise required to occur under this Agreement; occurrence of such breach or default) or (b) waive said failure or breach and proceed to Closing; provided, however, that if the nature of Seller’s default is such that an action for specific performance would be impossible or impracticable, then Purchaser shall have the right to terminate this Agreement and recover the Xxxxxxx Money by giving Seller and the Escrow Agent timely written notice of such election prior to Seller (which notice shall indicate that a Seller default is alleged by Purchaser) or at Closing, and receive the entire Deposit and reimbursement to recover from Seller its actual out-of-pocket costs and expenses in an amount not to exceed $30,000.00, incurred in connection with negotiation of Purchaser’s Coststhis Agreement and investigation of feasibility of the Property, in following which event neither Purchaser nor Seller nor Purchaser shall have any further liability rights or obligation under this Agreement obligations hereunder, except as those that expressly provided for in survive the termination of this Agreement. Notwithstanding anything Purchaser’s sole and exclusive remedies for Seller default at or prior to the contrary Closing shall be limited to those described in this Agreement, to the full extent permitted by law, Purchaser waives, Section 10.2 and Seller shall not be liable to Purchaser for, any claim against Seller for loss of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In the event that Purchaser elects to seek specific performance under this Section 12.2, 37 Seller shall not be obligated to expend any money to change the condition of the Property or the state of title of the Property except as otherwise required by this Agreement. Notwithstanding the foregoing provisions of this Section 12.2, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition set forth in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19, and this Agreement shall automatically terminate upon the failure of such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit to Purchaser, and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreement10.3.
Appears in 1 contract
Purchaser’s Remedies. If In the event that Seller fails or refuses to satisfy any condition comply with its obligations hereunder, Purchaser not being in default hereunder, the following options shall be available to Closing set forth in Sections 8.1.1 be exercised by or 8.1.2 on behalf of Purchaser, as Purchaser’s sole and exclusive remedies: (provided that with respect a) to any failure to satisfy the condition to Closing set forth in Section 8.1.2, such failure is the result of an act or omission reasonably within Seller’s control or a breach of terminate this Agreement by Seller), and such failure is not waived by Purchaser, or giving Seller otherwise defaults in its obligation to close under this Agreement, and any such failure or default continues for five (5) business days following Seller’s receipt of timely written notice of such default from Purchaserelection prior to or at the Closing, Purchaser’s sole remedy therefor and thereupon this Agreement shall terminate, and Purchaser shall be entitled to either the immediate return of the Xxxxxxx Money, and all parties hereto or mentioned herein shall be relieved and released of all further obligations, claims and liabilities hereunder; (ab) bring an action for to waive, prior to or at the Closing, the applicable objection or condition and proceed to close the transaction contemplated hereby in accordance with the remaining terms hereof; or (c) to enforce specific performance of Seller’s obligation obligations under this Agreement to deliver the documents required under Section 9.1 aboveAgreement; provided, provided however, that any such action for specific performance must be initiated no later than sixty instituted, if at all, within thirty (6030) days after the date that Closing breach or alleged breach by Seller and, if such action is otherwise required to occur under this Agreement; or (b) terminate this Agreement by written notice to Seller (which notice shall indicate that a Seller default is alleged by Purchaser) and receive the entire Deposit and reimbursement from Seller not so instituted within such period of Purchaser’s Coststime, in which event neither Seller nor then Purchaser shall be deemed conclusively to have any further liability or obligation under this Agreement except as expressly waived the right to institute such action and to have elected to pursue the other remedies provided hereinabove; and provided further, however, that no action for in this Agreement. Notwithstanding anything to the contrary in this Agreement, to the full extent permitted specific performance may be instituted by law, Purchaser waives, and Seller shall not be liable to Purchaser for, any claim against Seller for loss of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In the event that Purchaser elects to seek specific performance under this Section 12.2, 37 Seller shall not be obligated to expend any money to change the condition of the Property or the state of title of the Property except as otherwise required by this Agreement. Notwithstanding the foregoing provisions of this Section 12.2, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition set forth in Section 8.1.5 any breach of a representation and warranty or the required Seller closing delivery set forth in Section 9.1.19, and this Agreement shall automatically terminate upon the failure of any condition due to any cause not reasonably within the control of Seller, Purchaser’s remedies in such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit event being limited to Purchaser, and neither Seller nor Purchaser shall have any further liability termination or obligation under this Agreement except waiver as expressly provided for in this Agreementdescribed above.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Physicians Realty Trust)
Purchaser’s Remedies. If Seller fails is in default of this Agreement, for any reason, which default is not cured within two (2) business days after written notice from Purchaser to satisfy Seller of such breach (except for breach to close on the Closing Date in accordance with the terms and provisions of this Agreement, for which no notice or cure shall be required or allowed), Purchaser’s sole remedy shall be to (i) terminate this Agreement and receive a return of the Deposit (including the Non-Refundable Deposit), and Seller shall pay to Purchaser any condition and all “Purchaser’s Costs” (defined below) incurred as of the date of such termination, (ii) xxx for specific performance, provided an action therefor is commenced within ninety (90) days of the alleged default, or (iii) only in the event that specific performance is unavailable because Seller has sold the Property to Closing set forth another party or otherwise has willfully taken an action that prevents Purchaser from obtaining specific performance, xxx for actual, but not consequential or punitive, damages. Except as expressly provided in Sections 8.1.1 the foregoing sentence, in no event shall Purchaser have a right to seek damages from Seller. For purposes of this Agreement, “Purchaser’s Costs” shall mean the actual verifiable expenses incurred by Purchaser, paid or 8.1.2 payable to (provided that 1) (A) Purchaser’s attorneys in connection with respect to any failure to satisfy the condition to Closing set forth in Section 8.1.2, such failure is the result of an act or omission reasonably within Seller’s control or a breach 10722467 negotiation of this Agreement by Seller)or the proposed purchase of the Property, (B) to third party consultants in connection with the performance of examinations, inspections and/or investigations of the Property or (C) to any potential lender in connection with any proposed financing of the Property to the extent not covered in Section (2) hereof, such items (A)-(C) in an amount not to exceed, in the aggregate, $75,000, and (2) so long as Purchaser has provided at least two (2) business days prior written notice to Seller of its intention to complete such failure is “rate lock” or “spread lock”, to any potential lender for any non-refundable “rate lock” or “spread lock” deposits or fees or rate cap purchase costs paid not waived by Purchaser, or Seller otherwise defaults in its obligation to close under this Agreement, and any such failure or default continues for more than five (5) business days following Seller’s receipt prior to the Closing Date in connection with any proposed financing, not to exceed, in the aggregate, the sum of written notice of such default from Purchaser, Purchaser’s sole remedy therefor shall be to either (a) bring an action for specific performance of $650,000.00. Seller’s obligation under this Agreement to deliver pay the documents required under Section 9.1 above, provided that any action for specific performance must be initiated no later than sixty (60) days after the date that Closing is otherwise required to occur under this Agreement; or (b) terminate this Agreement by written notice to Seller (which notice shall indicate that a Seller default is alleged by Purchaser) and receive the entire Deposit and reimbursement from Seller of Purchaser’s Costs, in which event neither Seller nor Purchaser Costs shall have survive any further liability or obligation under this Agreement except as expressly provided for in this Agreement. Notwithstanding anything to the contrary in this Agreement, to the full extent permitted by law, Purchaser waives, and Seller shall not be liable to Purchaser for, any claim against Seller for loss termination of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In the event that Purchaser elects to seek specific performance under this Section 12.2, 37 Seller shall not be obligated to expend any money to change the condition of the Property or the state of title of the Property except as otherwise required by this Agreement. Notwithstanding the foregoing provisions of this Section 12.2, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition set forth in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19, and this Agreement shall automatically terminate upon the failure of such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit to Purchaser, and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreement.
Appears in 1 contract
Samples: Sale Purchase Agreement (Steadfast Apartment REIT III, Inc.)
Purchaser’s Remedies. If (x) Seller fails shall default in any of its obligations to satisfy be performed on the Closing Date or (y) Seller shall default in the performance of any condition of its obligations to be performed prior to the Closing set forth in Sections 8.1.1 or 8.1.2 (provided that Date and, with respect to any failure to satisfy the condition to Closing set forth in Section 8.1.2default under this clause (y) only, such failure is the result of an act or omission reasonably within default shall continue for ten (10) days after notice to Seller’s control or a breach of this Agreement by Seller), and such failure is not waived by Purchaser, or Seller otherwise defaults in Purchaser as its obligation to close under this Agreement, and any such failure or default continues for five (5) business days following Seller’s receipt of written notice of such default from Purchaser, Purchaser’s sole remedy therefor shall be to either by reason thereof (a) bring in lieu of prosecuting an action for damages or proceeding with any other legal course of conduct, the right to bring such actions or proceedings being expressly and voluntarily waived by Purchaser following and upon advice of its counsel) shall have the right (i) solely, in the event of a default by Seller beyond all applicable notice and cure periods, to seek to obtain specific performance of Seller’s obligation under this Agreement to deliver the documents required under Section 9.1 above's obligations hereunder, provided that any action for specific performance must shall be initiated no later than commenced within sixty (60) days after the date that Closing is otherwise required to occur under this Agreement; Purchaser received notice of such default, or (bii) to terminate this Agreement by written notice to Seller (which notice shall indicate that a Seller default is alleged by Purchaser) and receive a return of the entire Deposit Downpayment, it being understood that if Purchaser fails to commence an action for specific performance within sixty (60) days after Purchaser received notice of such default, Purchaser's sole remedy shall be to receive a return of the Downpayment. Upon such return and reimbursement from Seller of Purchaser’s Costsdelivery, in which event this Agreement shall terminate and neither Seller nor Purchaser party hereto shall have any further liability rights or obligation under obligations hereunder except for those that are expressly provided in this Agreement except as expressly provided for in this Agreementto survive the termination hereof. Notwithstanding anything to the contrary in this Agreement, to the full extent permitted by lawprovided herein, Purchaser waives, and Seller shall not be liable to Purchaser for, any claim against Seller for loss of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In have the event that Purchaser elects right to seek specific performance of Seller's obligations under this Section 12.2, 37 contract if Seller shall not be obligated prohibited from performing its obligations hereunder by reason of any law, regulation, or other legal requirement applicable to expend any money Seller, or if Seller shall be unable to change obtain the condition of the Property No Action Letter or the state of title of the Property except as otherwise required by this Agreement. Notwithstanding the foregoing provisions of this Section 12.2, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition set forth in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19, and this Agreement shall automatically terminate upon the failure of such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit to Purchaser, and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this AgreementPSC Approval.
Appears in 1 contract
Samples: Contract of Sale
Purchaser’s Remedies. If Seller fails defaults in any material respect in performing its obligations under this Agreement to satisfy any condition close the sale of the Property, including but not limited to Closing set forth in Sections 8.1.1 or 8.1.2 (provided that with respect its obligations under Section 5.4(a), then Purchaser shall have the right, after delivery of written notice to any failure to satisfy the condition to Closing set forth in Section 8.1.2, Seller of such failure is and the result expiration of an act or omission reasonably within Seller’s control or a breach of this Agreement by Seller), and such failure is not waived by Purchaser, or Seller otherwise defaults in its obligation to close under this Agreement, and any such failure or default continues for five (5) business days following Seller’s receipt of written notice day cure period from delivery of such default from Purchasernotice, to exercise any one of the following as Purchaser’s sole remedy therefor shall be to either and exclusive remedy:
(a) bring an action for specific performance of proceed to Closing without any reduction in or set-off against the Purchase Price, in which case Purchaser shall be deemed to have waived Seller’s obligation default in performing its obligations and covenants under this Agreement or Seller’s incorrect representations and warranties and such waiver will be deemed to deliver include any and all Claims associated with the documents required under Section 9.1 abovesame, provided that including any action for specific performance must be initiated no later than sixty (60) days after the date that Closing is otherwise required to occur under this Agreementpost-closing survivability or post-closing indemnity; or or
(b) terminate this Agreement by giving Seller written notice to Seller (which notice shall indicate that a Seller default is alleged by Purchaser) and receive the entire Deposit and reimbursement from Seller of Purchaser’s Costs, in which event neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreement. Notwithstanding anything to the contrary in this Agreement, to the full extent permitted by law, Purchaser waives, and Seller shall not be liable to Purchaser for, any claim against Seller for loss of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In the event that Purchaser elects to seek specific performance under this Section 12.2, 37 Seller shall not be obligated to expend any money to change the condition of the Property or the state of title of the Property except as otherwise required by this Agreement. Notwithstanding the foregoing provisions of this Section 12.2, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition set forth in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19, and this Agreement shall automatically terminate upon the failure of such condition and/or closing delivery, election prior to or at the Closing whereupon (i) Escrow Agent shall promptly refund return the Deposit Exxxxxx Money to Purchaser, and (ii) neither Seller nor Purchaser party to this Agreement shall thereafter have any further liability rights or obligation liabilities under this Agreement Agreement, except as expressly provided that (a) Seller shall pay the expenses of escrow, (b) each party shall continue to be obligated under the Surviving Obligations, and (c) Seller shall reimburse Purchaser for its reasonable aggregate out-of-pocket expenses in connection with the proposed purchase of the Property (not to exceed the sum of Seventy Five Thousand Dollars ($75,000.00)); or
(c) seek specific performance on the part of Seller under the terms of this Agreement; provided such action seeking specific performance is initiated in a court of competent jurisdiction within sixty (60) days of the scheduled Closing Date; provided, however, that in the event such remedy is unavailable by reason of any act of Seller, then Purchaser may pursue all remedies available at law or in equity. Failure to file a suit for specific performance within such sixty (60) day period shall be deemed a waiver of such remedy.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Moody National REIT I, Inc.)
Purchaser’s Remedies. If (x) Seller fails shall default in any of its obligations to satisfy be performed on the Closing Date or (y) Seller shall default in the performance of any condition of its material obligations to be performed prior to the Closing set forth in Sections 8.1.1 or 8.1.2 (provided that Date and, with respect to any failure to satisfy the condition to Closing set forth in Section 8.1.2default under this clause (y) only, such failure is the result of an act or omission reasonably within default shall continue for twenty (20) days after notice to Seller’s control or a breach of this Agreement by Seller), and such failure is not waived by Purchaser, or Seller otherwise defaults in Purchaser as its obligation to close under this Agreement, and any such failure or default continues for five (5) business days following Seller’s receipt of written notice of such default from Purchaser, Purchaser’s sole remedy therefor shall be to either by reason thereof (a) bring in lieu of prosecuting an action for damages or proceeding with any other legal course of conduct, the right to bring such actions or proceedings being hereby expressly and voluntarily waived by Purchaser following and upon advice of its counsel) shall have the right (i) solely, in the event of a willful default by Seller, to seek to obtain specific performance of Seller’s obligation under this Agreement to deliver the documents required under Section 9.1 aboveobligations hereunder, provided that any action for specific performance must shall be initiated no later than commenced within sixty (60) days after the date that Closing is otherwise required to occur under this Agreement; notice of such default or (bii) to terminate this Agreement by written notice to Seller (which notice shall indicate that a Seller default is alleged by Purchaser) and receive a return of the entire Deposit and reimbursement from Seller Downpayment, it being understood that if Xxxxxxxxx fails to commence an action for specific performance within sixty (60) days after such notice of default, Purchaser’s Costssole remedy shall be to receive a return of the Downpayment in accordance with Article 30 below. Upon such return of the Downpayment, in which event this Agreement shall terminate and neither Seller nor Purchaser party hereto shall have any further liability rights or obligation under obligations hereunder except for those that are expressly provided in this Agreement except as expressly provided for in this Agreementto survive the termination hereof. Notwithstanding anything to the contrary in this Agreement, to the full extent permitted by lawcontained herein, Purchaser waives, and Seller shall not be liable to Purchaser for, any claim against Seller for loss of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In only have the event that Purchaser elects right to seek specific performance under this Section 12.2, 37 if Seller shall not be obligated to expend any money to change the condition of the Property or the state of title of the Property except as otherwise required by this Agreementwillfully defaults. Notwithstanding the foregoing provisions of this Section 12.2, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition set forth in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19, and this Agreement shall automatically terminate upon the failure of such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit to Purchaser, and neither Seller nor Purchaser shall have no right of specific performance if Seller shall be prohibited from performing its obligations hereunder by reason of any further liability law, regulation, or obligation under this Agreement except as expressly provided for in this Agreementother legal requirement applicable to Seller or if Seller shall be unable to obtain the No Action Letter or the PSC Approval.
Appears in 1 contract
Samples: Contract of Sale
Purchaser’s Remedies. If Seller fails to satisfy any condition to Closing set forth in Sections 8.1.1 or 8.1.2 (provided that with respect to any failure to satisfy Upon receipt by the condition to Closing set forth in Section 8.1.2, such failure is Purchaser of notice of the result occurrence of an act or omission reasonably within Seller’s control or a breach Event of this Agreement by Seller)Default hereunder, and at any time thereafter during the continuance of such failure is not waived by Event of Default, the Purchaser, or Seller otherwise defaults as assignee of the Authority, may, by written notice to the Authority and the Borrower, declare the entire unpaid principal amount of the Bond and the Note to be due and payable forthwith, to the extent and in its obligation to close under accordance with this Agreement, whereupon such amount shall become forthwith due and any such failure payable, both as to principal and interest, without presentment, demand, protest or default continues for five (5) business days following Seller’s receipt of written other notice of any kind, all of which are hereby expressly waived, anything contained herein or elsewhere to the contrary notwithstanding, and thereupon the Purchaser may take one or more of the following remedial steps in such default from order and sequence as the Purchaser, Purchaser’s in its sole remedy therefor shall be to either judgment, may determine:
(a) bring an take any action for specific performance of Seller’s obligation at law or in equity to collect the payments then due and thereafter to become due under this Agreement or to deliver enforce performance and observance of any obligation, agreement or covenant of the documents required under Section 9.1 above, provided that any action for specific performance must be initiated no later than sixty (60) days after the date that Closing is otherwise required to occur Borrower under this Agreement; or or
(b) terminate this Agreement exercise any and all rights and remedies conferred upon the Purchaser under the Bond Documents; or
(c) exercise any and all rights and remedies conferred upon secured parties by written notice to Seller (which notice shall indicate that a Seller default is alleged by Purchaser) the State Uniform Commercial Code and receive other applicable laws. If the entire Deposit and reimbursement from Seller of Purchaser’s Costs, in which event neither Seller nor Purchaser shall have any further liability or obligation proceeded to enforce its rights under this Agreement except as expressly provided and such proceedings shall have been discontinued or abandoned for in this Agreement. Notwithstanding anything any reason or shall have been determined adversely to the contrary in this AgreementPurchaser, then the Borrower and the Purchaser shall be restored respectively to the full extent permitted by law, Purchaser waivestheir several positions and rights hereunder, and Seller shall not be liable to Purchaser forall rights, any claim against Seller for loss of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In the event that Purchaser elects to seek specific performance under this Section 12.2, 37 Seller shall not be obligated to expend any money to change the condition remedies and powers of the Property or Borrower and the state of title of the Property except as otherwise required by this Agreement. Notwithstanding the foregoing provisions of this Section 12.2, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition set forth in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19, and this Agreement shall automatically terminate upon the failure of such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit to Purchaser, and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except continue as expressly provided for in this Agreementthough no such proceedings had taken place.
Appears in 1 contract
Samples: Bond Agreement (Foilmark Inc)
Purchaser’s Remedies. If In the event a Seller fails to satisfy any condition to Closing set forth Event of Default occurs, Purchaser may elect, in Sections 8.1.1 or 8.1.2 (provided that with respect to any failure to satisfy the condition to Closing set forth in Section 8.1.2, such failure is the result of an act or omission reasonably within Seller’s control or a breach of this Agreement by Seller), and such failure is not waived by Purchaser, or Seller otherwise defaults in its obligation to close under this Agreement, and any such failure or default continues for five (5) business days following Seller’s receipt of written notice of such default from Purchaser, Purchaser’s sole remedy therefor shall be to discretion, either (a) bring an action for specific performance of Seller’s obligation under this Agreement to deliver the documents required under Section 9.1 above, provided that any action for specific performance must be initiated no later than sixty (60) days after the date that Closing is otherwise required to occur under this Agreement; or (b) terminate below (each of which shall include [c] below) as Purchaser’s sole and exclusive remedy for the Seller Event of Default:
(a) Terminate this Agreement by timely and properly delivering to Seller written notice to Seller (which notice shall indicate that a Seller default is alleged by Purchaser) and receive the entire Deposit and reimbursement from Seller of Purchaser’s Coststermination, in which event case Purchaser shall be entitled to receive a refund of the Xxxxxxx Money Deposit and thereafter neither Seller nor Purchaser shall have any further liability obligations or obligation under liabilities herein, save and except those obligations or liabilities that expressly survive the Closing of the Transaction or earlier termination of this Agreement;
(b) Bring an action for specific performance; or
(c) Notwithstanding the foregoing, upon a Seller Event of Default Purchaser shall also be entitled to recover from Seller all of Purchaser’s out-of-pocket costs and expenses incurred in connection with this Agreement except as expressly provided for in this Agreement. Notwithstanding anything (including without limitation, the Transaction Costs, any other due diligence costs, reasonable attorneys’ fees) not to exceed $100,000.00 (such amount to be paid to Purchaser upon receipt by Seller of evidence of the contrary in this Agreement, to the full extent permitted incurrence thereof by law, Purchaser waivesPurchaser), and Seller neither party shall not be liable have any further obligation or liability, except for the obligations set forth herein, the provisions of which are expressly stated to Purchaser for, any claim against Seller for loss survive terminations of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In the event that Purchaser elects to seek specific performance under this Section 12.2, 37 Seller shall not be obligated to expend any money to change the condition of the Property or the state of title of the Property except as otherwise required by this Agreement. Notwithstanding the foregoing provisions of foregoing, nothing contained in this Section 12.2, Seller 7.02 shall not be entitled construed to effect in any notice from Purchaser nor any cure period with respect to the closing condition way Seller’s indemnities set forth in (x) Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.192.05 above (regarding Seller’s indemnity of Purchaser for any state and local income, franchise, and this Agreement shall automatically terminate upon other taxes [and any applicable interest or penalties] imposed upon, or payable by, Seller in the failure of such condition and/or closing delivery, Escrow Agent shall promptly refund state where the Deposit to PurchaserProperties are located), and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreement(y) Section 8.06.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Party City Holdco Inc.)
Purchaser’s Remedies. If (i) Except as provided below Section 12(a)(ii) below, if Seller fails to satisfy breaches any warranty or representation contained in this Agreement or defaults in the performance of any condition to Closing set forth in Sections 8.1.1 be complied with or 8.1.2 (provided that with respect to any failure to satisfy the condition to Closing set forth in Section 8.1.2covenant, such failure is the result of an act agreement or omission reasonably within Seller’s control or a breach of this Agreement by Seller), and such failure is not waived by Purchaser, or Seller otherwise defaults in its obligation to close be performed by Seller under the terms and provisions of this Agreement, and any such failure breach or default continues for five ten (510) business days following Seller’s receipt of after written notice of such default from Purchaser to Seller, Purchaser, as Purchaser’s 's sole remedy therefor and exclusive remedy, shall be entitled to: (i) terminate this Agreement by giving written notice thereof to either (a) bring an action for specific performance of Seller’s obligation , whereupon the Xxxxxxx Money shall be returned to Purchaser and neither party shall have any further rights or obligations under this Agreement to deliver the documents required under Section 9.1 above, unless expressly provided that any action for specific performance must be initiated no later than sixty (60) days after the date that Closing is otherwise required to occur under in this Agreement; or (bii) terminate enforce specific performance of Seller's obligations under this Agreement by written notice Agreement; provided, however, that if, due to Seller (which notice shall indicate that a Seller default any act of Seller, specific performance is alleged by Purchaser) and receive impossible or the entire Deposit and reimbursement from Seller applicable trier of Purchaser’s Costsfact determines that, in which event neither Seller nor because of such act, specific performance is not an appropriate or available remedy, Purchaser shall have the right to exercise any further liability or obligation under this Agreement except as expressly provided for in this Agreement. Notwithstanding anything to the contrary in this Agreement, to the full extent permitted by law, Purchaser waives, and Seller shall not be liable all remedies available to Purchaser for, any claim against Seller for loss of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damagesat law and in equity. In the event that of a termination by Purchaser elects under (i) above, Purchaser may bring an action to seek specific performance under recover from Seller, Purchaser's actual and reasonable out-of-pocket expenses paid or incurred by Purchaser in connection with this Agreement in an amount not to exceed Twenty Thousand and No/100 Dollars ($20,000.00), inclusive of attorneys’ fees and costs.
(ii) The limitations set forth above in this Section 12.2, 37 Seller 12(a)(i) above shall not be obligated apply to expend any money a default by Seller under (1) Section 6(b), but only to change the condition of extent that such default occurs at or after the Property or the state of title of the Property except as otherwise required by this Agreement. Notwithstanding the foregoing provisions of this Section 12.2, Seller shall not be entitled to any notice from Purchaser nor any cure period Closing (including with respect to the closing condition set forth representations and warranties of Seller contained in Section 8.1.5 6(b) that are deemed pursuant to the provisions of Section 6(b) to be restated and true and correct as of the Closing Date), (2) any other covenant of Seller under this Agreement which, pursuant to the express provisions of this Agreement, survives the Closing, but only to the extent that such default occurs at or after the required Seller closing delivery set forth Closing. Seller's total liability to Purchaser for any and all breaches occurring at or after the Closing of any covenant, representation and warranty, or other obligation or liability contained in Section 9.1.19, and this Agreement shall automatically terminate upon not exceed One Million and No/100 Dollars ($1,000,000.00), in the failure aggregate, but inclusive of such condition and/or closing deliveryattorneys’ fees and costs; provided, Escrow Agent shall promptly refund the Deposit to Purchaserhowever, and neither Seller nor Purchaser shall have no right to assert a claim or bring a cause of action against Seller for any further breach of any covenant, representation and warranty, or other obligation or liability or obligation under contained in this Agreement except or any certificate, assignment or other document delivered in connection with this Agreement unless the damage to Purchaser as expressly provided for a result of such claim (individually or when combined with damages from other claims described in this AgreementSection) equals or exceeds Fifty Thousand Dollars ($50,000.00).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Qualtrics International Inc.)
Purchaser’s Remedies. If any Seller fails to satisfy any condition to Closing set forth is in Sections 8.1.1 or 8.1.2 (provided that with respect to any failure to satisfy the condition to Closing set forth default hereunder as -------------------- described in Section 8.1.2, such failure is 12.1 (which default has not been cured to the result satisfaction of an act or omission reasonably within Seller’s control or a breach of this Agreement by SellerPurchaser), and such failure is not waived by PurchaserPurchaser may, except as approved in Section 12.5, exercise any or Seller otherwise defaults in its obligation to close under this Agreement, and any such failure or default continues for five (5) business days all of the following Seller’s receipt of written notice of such default from Purchaser, Purchaser’s sole remedy therefor shall be to either remedies:
(a) bring an action for specific performance of Seller’s obligation under this Agreement to deliver the documents required under Section 9.1 above, provided that any action for specific performance must be initiated no later than sixty (60) days after the date that Closing is otherwise required to occur under this Agreement; or (b) terminate Terminate this Agreement by written notice delivered to Seller (HHR and Escrow Agent on or before the Closing Date in which notice event Escrow Agent shall indicate that a Seller default is alleged promptly return to Purchaser the Escrow Deposit, any other amounts deposited by Purchaser) Purchaser in Escrow or with Committee Counsel and receive the entire Deposit and reimbursement from Seller any of Purchaser’s Costs's documents deposited with Escrow Agent, to Purchaser;
(b) Enforce specific performance of this Agreement against Sellers, in which event neither Seller nor Purchaser shall be deemed to have accepted Sellers' title to the Assets and waived any further liability breach by Sellers of any of its representations and warranties made hereunder; or
(c) Seek actual and incidental damages or obligation under this Agreement except as expressly provided any other equitable remedies which it may otherwise have for in this Agreement. Notwithstanding Sellers' default, but not to exceed $1,000,000; provided, however, that, notwithstanding anything to the contrary contained in this Agreement, (i) a default under Section 4.14 shall be deemed a bad faith breach and willful misconduct hereunder for which Purchaser may, except as provided herein, seek damages, not to exceed $1,000,000, regardless of whether the full extent permitted by lawSale Order has been entered, and (ii) in the event of a default under clause (c) or (d) of Section 4.14, Purchaser waives, and Seller shall not be liable to Purchaser for, seek damages against any claim against Seller for loss of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In the event that Purchaser elects to seek specific performance under this Section 12.2, 37 Seller shall not be obligated to expend any money to change the condition of the Property or the state of title of the Property except as otherwise required by this AgreementSeller. Notwithstanding the foregoing provisions of this Section 12.2foregoing, Seller shall if Purchaser has not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition set forth exercised either remedy described in Section 8.1.5 clause (a) or the required Seller closing delivery set forth in Section 9.1.19(b) above by December 31, and 1997, this Agreement shall automatically terminate upon the failure of such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit except for Purchaser's right to Purchaser, and neither Seller nor Purchaser shall have any further liability or obligation exercise its remedies under this Agreement except as expressly provided for in this Agreementclause (c) above.
Appears in 1 contract
Purchaser’s Remedies. If Seller fails to satisfy perform its obligations pursuant to this Agreement for any condition reason except failure by Purchaser to perform hereunder, or if prior to Closing set forth in Sections 8.1.1 any one or 8.1.2 (provided that with respect to any failure to satisfy the condition to Closing set forth in Section 8.1.2, such failure is the result of an act or omission reasonably within Seller’s control or a breach of this Agreement by Seller), and such failure is not waived by Purchaser, or Seller otherwise defaults in its obligation to close under this Agreement, and any such failure or default continues for five (5) business days following Seller’s receipt of written notice of such default from Purchaser, Purchaser’s sole remedy therefor shall be to either (a) bring an action for specific performance more of Seller’s obligation under this Agreement 's representations or warranties are breached in any material respect, Purchaser shall elect, as its sole remedy, either to deliver the documents required under Section 9.1 above, provided that any action for specific performance must be initiated no later than sixty (60) days after the date that Closing is otherwise required to occur under this Agreement; or (bi) terminate this Agreement by giving Seller timely written notice of such election prior to Seller or at Closing and recover the Earnest Money, (which notice shall indicate that a Seller default is alleged by Purchaserii) enforcx xxxxxfic performance, or (iii) waive said failure or breach and receive the entire Deposit and reimbursement from Seller of Purchaser’s Costs, in which event neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreementproceed to Closing. Notwithstanding anything herein to the contrary contrary, Purchaser shall be deemed to have elected to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before twenty (20) business days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within three (3) months following the scheduled Closing Date. Purchaser's remedies shall be limited to those described in this AgreementSection 10.2 and Sections 10.3 and 10.4 hereof. If, to however, the full extent permitted by lawequitable remedy of specific performance is not available, Purchaser waivesmay seek any other right or remedy available at law or in equity; provided, however, that in no event shall Seller's liability exceed the Earnest Money, if it is nox xxxxxded to Purchaser), plus the lesser of (i) $75,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and Seller paid (A) to Purchaser's attorneys in connection with the negotiation of this Agreement and (B) to unrelated and unaffiliated third party consultants in connection with the performance of examinations, inspections and/or investigations pursuant to Article 4. For purposes of this provision, specific performance shall be considered not be liable available to Purchaser foronly if a court of competent jurisdiction (or an arbitrator, any claim against Seller for loss of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In the event as per Exhibit G) determines conclusively that Purchaser elects is entitled to seek specific performance under this Section 12.2, 37 Seller shall not be obligated on the merits of its claim but said court or arbitrator is unable to expend any money enforce specific performance due to change reasons beyond the condition control of the Property court or the state of title of the Property except as otherwise required by this Agreementarbitrator. Notwithstanding the foregoing provisions of this Section 12.2IN NO EVENT SHALL SELLER'S DIRECT OR INDIRECT PARTNERS, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition set forth in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19SHAREHOLDERS, and this Agreement shall automatically terminate upon the failure of such condition and/or closing deliveryOWNERS OR AFFILIATES, Escrow Agent shall promptly refund the Deposit to PurchaserANY OFFICER, and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this AgreementDIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.
Appears in 1 contract
Purchaser’s Remedies. If Seller fails to satisfy any condition to Closing set forth in Sections 8.1.1 or 8.1.2 (provided that with respect to any failure to satisfy the condition to Closing set forth in Section 8.1.2, such failure is the result of an act or omission reasonably within Seller’s control or a breach of this Agreement by Seller), and such failure is not waived by Purchaser, or Seller otherwise defaults in its obligation to close under this Agreement, and any such failure or default continues for five (5) business days following Seller’s receipt of written notice of such default from Purchaser, Purchaser’s sole remedy therefor shall be to either (a) bring an action for specific performance of Seller’s obligation under this Agreement to deliver the documents required under Section 9.1 above, provided that any action for specific performance must be initiated no later than sixty (60) days after the date that Closing is otherwise required to occur under this Agreement; or (b) terminate this Agreement by written notice to Seller (which notice shall indicate that a Seller default is alleged by Purchaser) and receive the entire Deposit and reimbursement from Seller of Purchaser’s Costs, in which event neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreement. Notwithstanding anything to the contrary in this Agreement, to the full extent permitted by law, Purchaser waives, and Seller transaction shall not be liable closed because of default of Seller, the Xxxxxxx Money shall, at Purchaser's election, be refunded to Purchaser foron demand, any claim against Seller for loss of business opportunityand, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In the event that Purchaser elects to seek specific performance under this Section 12.2, 37 Seller shall not be obligated to expend any money to change the condition after repayment of the Property or the state of title of the Property except as otherwise required by this Agreement. Notwithstanding the foregoing provisions of this Section 12.2Xxxxxxx Money to Purchaser, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition set forth in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19, and this Agreement shall automatically terminate upon the failure of such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit to Purchaser, be null and void and neither Seller nor Purchaser shall have any further liability rights or obligation obligations hereunder except that Purchaser shall remain obligated pursuant to the provisions hereof which survive termination; or Purchaser shall have the right to xxx for specific performance of this Agreement, provided that such specific performance remedy shall be available to Purchaser only upon Purchaser's full satisfaction of each of Purchaser's obligations under this Agreement, including without limitation Purchaser's obligation to deliver the Xxxxxxx Money to the Title Company and delivering sufficient proof to the Title Company and Seller that Purchaser is ready, willing and able to close this transaction. If, however, the equitable remedy of specific performance is not available, Purchaser may seek any other right or remedy available at law or in equity; provided, however, that in no event shall Seller's liability exceed the lesser of (i) $250,000 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser in connection with this Agreement, limited to payments to (A) Purchaser's attorneys' fees in connection with the negotiation of this Agreement and due diligence review of the Property and (B) unrelated and unaffiliated third party consultants in connection with the performance of examinations, inspections and/or investigations pursuant to Section 6.F. For the purposes of this provision, specific performance shall be considered not available to Purchaser only if a court of competent jurisdiction determines conclusively that Purchaser is entitled to specific performance on the merits of its claim but said court is unable to enforce specific performance due to reasons beyond the control of the court. The option selected by Purchaser shall be Purchaser's sole and exclusive remedy, and in no event shall Purchaser be entitled to damages except as expressly provided for specifically set forth herein. Purchaser agrees to indemnify, defend, protect, save and hold harmless Seller and each of Seller's directors, officers, employees, agents, affiliates, members, stockholders and other principals and representatives from and against any and all losses, claims, liabilities, damages, injuries, penalties and other costs and expenses of any and every kind whatsoever (collectively the “Losses”) paid, incurred or suffered by or asserted against Seller as a result of or arising out of Purchaser wrongfully seeking, commencing and/or prosecuting a specific performance action against Seller or in this Agreementany way wrongfully filing a lis pendens or similar action against the Property, which Losses shall include without limitation any amounts which would otherwise have been XXX- Xxxxxxxxx Xxxx Xxxxx realized by Seller had Seller been able to sell, transfer or convey the Property to any other purchaser free of any such specific performance, lis pendens or other similar action.
Appears in 1 contract
Samples: Sale Agreement (Hartman Short Term Income Properties XX, Inc.)
Purchaser’s Remedies. (a) If the sale contemplated by this Agreement is not consummated because of Seller's failure to perform its obligations hereunder or there is a breach of any of Seller's representations and warranties herein and Purchaser and LEHH are not in default under this Agreement and the Bond Purchase Agreement, respectively, and Seller fails to satisfy any condition to Closing set forth in Sections 8.1.1 or 8.1.2 cure (provided that or, with respect to a representation or warranty, fails to commence and effect a cure by the later of Closing or ten (10) days after written notice thereof from Purchaser) any such breach or failure within ten (10) days after written notice thereof from Purchaser to satisfy the condition Seller specifying such breach or failure, Purchaser shall be entitled, as its exclusive remedies, to Closing set forth in Section 8.1.2, such failure is the result of an act or omission reasonably within Seller’s control or a breach of elect either (i) to terminate this Agreement by Seller)and have the Property Earnest Money (together wxxx xxx interest accrued thereon) returned to it or (ii) subject to the provisions of Section 13.2(b) below, and such failure is not waived by Purchaser, or Seller otherwise defaults in its obligation to close under this Agreement, and any such failure or default continues for five (5) business days following Seller’s receipt of written notice of such default from Purchaser, Purchaser’s sole remedy therefor shall be to either (a) bring an action for enforce specific performance of Seller’s obligation under this Agreement to deliver the documents required under Section 9.1 above, provided that any action for specific performance must be initiated no later than sixty (60) days after the date that Closing is otherwise required to occur 's obligations under this Agreement; or (b) terminate this Agreement by written notice to Seller (which notice shall indicate that a Seller default provided, however, if specific performance is alleged by Purchaser) and receive the entire Deposit and reimbursement from Seller of Purchaser’s Costs, in which event neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreement. Notwithstanding anything to the contrary in this Agreement, to the full extent permitted by law, Purchaser waives, and Seller shall not be liable available to Purchaser for, any claim against Seller for loss of business opportunity, loss of profits, loss of income, economic loss as a remedy owing to Seller's having conveyed all or other special or consequential losses or damages or punitive damages. In the event that Purchaser elects to seek specific performance under this Section 12.2, 37 Seller shall not be obligated to expend any money to change the condition a portion of the Property to another party or some other voluntary act of Seller, then Purchaser, as its sole remedy, shall be entitled to be reimbursed by Seller for its reasonable out-of-pocket expenses (including attorneys' fees) in an amount not to exceed $100,000 and to liquidated damages in the state amount of title of the Property except as otherwise required by this Agreement$250,000. Notwithstanding the foregoing provisions of this Section 12.2, Seller In no event shall not Purchaser be entitled to any notice from indirect, consequential or punitive damages as a remedy hereunder.
(b) In no event shall Purchaser nor any cure period with respect be entitled to the closing condition set forth in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19, and this Agreement shall automatically terminate upon the failure enforce specific performance of such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit to Purchaser, and neither Seller nor Purchaser shall have any further liability or obligation Seller's obligations under this Agreement except as expressly provided for in this Agreementunless Purchaser notifies Seller of its intention to seek such specific performance within ten (10) days following the Closing Date.
Appears in 1 contract
Samples: Property Purchase Agreement (Homes for America Holdings Inc)
Purchaser’s Remedies. If Seller fails to satisfy 9.1 In the event of any condition to Closing set forth in Sections 8.1.1 material breath (save and except for a breach resulting from or 8.1.2 (provided that with respect to consequential of any failure to satisfy the condition to Closing set forth in Section 8.1.2, such failure is the result of an act or omission reasonably of the Purchaser, its servants or agents) by the Vendor prior to completion the Purchaser shall be entitled at its option on giving to the Vendor or its solicitors a Termination Notice to treat this Agreement as having been repudiated by the Vendor and (unless in the meanwhile the Vendor has rectified the said breach completely) this Agreement shall at the expiration of such notice (and in this respect time shall be of the essence) be annulled and in such an event, without prejudice to any other rights available to it at taw or in equity, the Purchaser shall be entitled to:
(a) a full refund of all sums previously paid by the Purchaser hereunder free of interest on such sums within Seller’s control 30 days of such repudiation; and
(b) a reimbursement of all cost and expense incurred by the Purchaser in the development of the Property and the construction of any buildings or structures on the Property up to the time of such repudiation, whereupon the Purchaser shall have no other claims against the Vendor. For the purposes of this Clause 9.1, “material breach” means a breach on or before the date of this Agreement of the provisions of the Building Agreement which are to be observed or performed by the Vendor or a breach after the date of this Agreement of the provisions of the Building Agreement which are to be observed or performed by Seller)the Vendor (and which are not delegated and/or assigned to the Purchaser pursuant to this Agreement) and which causes the Lessor to re-enter and re-possess the Property pursuant to Clause 5 of Lease No. 22205.
9.2 Upon the payment by the Vendor to the Purchaser of all monies stated in Clause 9.1,
(a) the Purchasers’ rights, title and interest in respect of the Property shall cease and determine, and the Vendor shall be entitled to take possession of the Property and any building’s or other structure and materials on the Property 7 days after such payment, and such building’s or structures and materials on the Property at the time of the Vendor’s possession of the Property shall belong to the Vendor absolutely; and
(b) the Purchaser shall within 7 days thereof procure the withdrawal or cancellation of all caveats, notifications of charges and other claims (if any) filed in any register against the Property by the Purchaser and all parties claiming under, through or in trust for the Purchaser.
9.3 In the event the Purchaser has completed its development on the Property and is ready to apply for TOP but is so prevented by the Vendor’s failure is not waived by Purchaser, to comply with or Seller otherwise defaults in perform all its obligation to close obligations under this AgreementAgreement (including, and any without limitation, its obligations under Clause 2.3), the Vendor shall pay the Purchaser liquidated damages calculated from the day on which the Purchaser was ready to apply for TOP provided that such failure day shall not be earlier than 1 May 2005 to the day on which the Vendor has complied with or default continues for five (5) business days following Seller’s receipt of written notice of such default from Purchaser, Purchaser’s sole remedy therefor shall be to either (a) bring an action for specific performance of Seller’s obligation performed all its obligations under this Agreement to deliver enable the documents required under Section 9.1 above, provided that any action Purchaser to apply for specific performance must be initiated no later than sixty TOP (60both days inclusive) days after (the date that Closing “Period”) as follows: (R x N) where R is otherwise required the daily rental the Purchaser has to occur under this Agreement; pay to its present landlords or (b) terminate this Agreement by written notice to Seller (which notice shall indicate that a Seller default is alleged by Purchaser) and receive its new landlords upon the entire Deposit and reimbursement from Seller of Purchaser’s Costs, in which event neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreement. Notwithstanding anything to the contrary in this Agreement, to the full extent permitted by law, Purchaser waives, and Seller shall not be liable to Purchaser for, any claim against Seller for loss of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In the event that Purchaser elects to seek specific performance under this Section 12.2, 37 Seller shall not be obligated to expend any money to change the condition termination of the Property or the state of title lease of the Property except as otherwise required by this Agreement. Notwithstanding premises out of which it presently operates; and N is the foregoing provisions number of this Section 12.2, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to days in the closing condition set forth in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19, and this Agreement shall automatically terminate upon the failure of such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit to Purchaser, and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this AgreementPeriod.
Appears in 1 contract
Purchaser’s Remedies. If Seller fails to satisfy any condition to Closing set forth in Sections 8.1.1 or 8.1.2 Upon the occurrence of a Permitted Event (provided that with respect to any failure to satisfy the condition to Closing set forth in Section 8.1.2, such failure is the result of an act or omission reasonably within Seller’s control or a breach of this Agreement by Seller), and such failure is not waived by Purchaser, or Seller otherwise defaults in its obligation to close under this Agreement, and any such failure or default continues for five (5as defined below) business days following Seller’s receipt of written notice of such default from Purchaser, Purchaser’s sole remedy therefor Purchaser shall be entitled, as its sole and exclusive remedy, to either (ai) bring an action for terminate this Agreement (by delivering notice to Seller which includes a waiver of any right, title or interest of Purchaser in the Property) and, subject to SECTION 5.2.8, obtain the return of the Deposit or (ii) treat this Agreement as being in full force and effect and, provided Purchaser commences its specific performance of Seller’s obligation under this Agreement to deliver the documents required under Section 9.1 above, provided that any action for specific performance must be initiated no later than sixty within thirty (6030) days after the date that Closing is Date (or otherwise required to occur under waives its specific performance), pursue only the specific performance of this Agreement; or (b) terminate PROVIDED, HOWEVER, if Seller's default is due solely to Seller's inability to deliver the executed estoppel certificate specified in SECTION 3.1.6 hereof, then Purchaser's sole and exclusive remedy shall be limited to terminating this Agreement by written notice and obtaining a return of the Deposit. The term "PERMITTED EVENT" shall mean the occurrence of all of the following: (1) Purchaser shall be ready, willing and able to Seller complete closing in accordance with this Agreement on the Closing Date, (which notice shall indicate that a Seller default is alleged by Purchaser2) and receive the entire Deposit and reimbursement from Seller of Purchaser’s Costs, in which event neither Seller nor Purchaser shall have any further liability tendered the Purchase Price and (3) notwithstanding the foregoing, Seller shall have refused or obligation under this Agreement except as expressly provided for otherwise failed to complete closing in accordance with this Agreement. Notwithstanding anything The foregoing limitations shall not apply to Purchaser's post-Closing remedies with respect to a breach of any representation or warranty contained herein which shall be governed by the contrary in provisions of SECTION 16.8 of this Agreement. Purchaser waives any right to pursue any other remedy at law or equity for such default of Seller, including, without limitation, any right to the full extent permitted by lawseek, Purchaser waivesclaim or obtain damages, and punitive damages or consequential damages. In no case shall Seller shall not ever be liable to Purchaser forunder any statutory, common law, equitable or other theory of law, either prior to or following the Closing, for any claim against Seller for loss of business opportunitylost rents, loss of profits, loss "benefit of incomethe bargain," business opportunities or any form of consequential damage in connection with any claim, economic loss liability, demand or other special cause of action in any way or consequential losses or damages or punitive damages. In manner relating to the event that Purchaser elects to seek specific performance under this Section 12.2Property, 37 Seller shall not be obligated to expend any money to change the condition of the Property or the state of title of the Property except as otherwise required by Property, this Agreement. Notwithstanding , or any transaction or matter between the foregoing provisions of this Section 12.2, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition set forth in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19, and this Agreement shall automatically terminate upon the failure of such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit to Purchaser, and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreementparties contemplated hereunder.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Behringer Harvard Mid Term Value Enhancement Fund I Lp)
Purchaser’s Remedies. If Seller fails to satisfy perform when due any condition to Closing set forth in Sections 8.1.1 or 8.1.2 (provided that with respect to any failure to satisfy the condition to Closing set forth in Section 8.1.2, such failure is the result of an act or omission reasonably within Seller’s control or a breach of required by this Agreement to be performed by Seller)Seller on or prior to the Closing Date, and such failure provided Purchaser is not waived by then in default, then Purchaser, or Seller otherwise defaults in as its obligation to close under this Agreementsole and exclusive remedies, and any may, if such failure or default continues for is not cured after five (5) business days following Seller’s receipt of notice to Seller and Escrow Agent, either: (i) terminate this Agreement and the escrow, such termination to be effective upon Purchaser giving written notice of termination to Seller and Escrow Agent, and upon such default from termination, Purchaser shall be entitled to (x) a return of, and Escrow Agent shall deliver to Purchaser, the Deposit (together with the interest thereon as described in Section 1.3.1), and (y) reimbursement from Seller for Purchaser’s sole remedy therefor shall be reasonable actual out-of-pocket expenses incurred to either unrelated third parties during the inspection process for third-party reports, appraisal fees, and similar expenses (aother than the Design Costs, as that term is defined in Article 17), but not to exceed Twenty-Five Thousand and No/100 Dollars ($25,000.00); or (ii) bring an action for to compel specific performance of Seller’s obligation under this Agreement to deliver the documents required under Section 9.1 above's obligations hereunder, provided thereby waiving any other legal and equitable remedies against Seller; provided, however, that any action for specific performance must be initiated no later than sixty filed and served upon Seller within thirty (6030) days after the date that Closing is Seller’s alleged failure to perform, otherwise required to occur under this Agreement; or (b) terminate this Agreement by written notice to Seller (which notice shall indicate that a Seller default is alleged by Purchaser) and receive the entire Deposit and reimbursement from Seller of Purchaser’s Costs, in which event neither Seller nor Purchaser shall be deemed to have any further liability elected to proceed in accordance with clause (i) above. In no event shall Purchaser be entitled to seek or obligation under this Agreement except as expressly provided for in this Agreement. Notwithstanding anything to the contrary in this Agreement, to the full extent permitted by law, Purchaser waives, and Seller shall not be liable to Purchaser for, any claim obtain money damages against Seller for loss of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In the event that Purchaser elects based on Seller's alleged failure to seek specific performance under this Section 12.2, 37 Seller shall not be obligated to expend perform when due any money to change the condition of the Property or the state of title of the Property except as otherwise act required by this Agreement. Notwithstanding the foregoing provisions of this Section 12.2, Agreement to be performed by Seller shall not be entitled to any notice from Purchaser nor any cure period with respect on or prior to the closing condition set forth in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19, and this Agreement shall automatically terminate upon the failure of such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit to Purchaser, and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this AgreementClosing Date.
Appears in 1 contract
Purchaser’s Remedies. If Seller fails the sale is not completed as herein provided solely by reason of any material default of Seller, Purchaser shall be entitled, as its sole and exclusive remedy, to satisfy any condition to Closing set forth in Sections 8.1.1 or 8.1.2 either (provided that with respect to any failure to satisfy the condition to Closing set forth in Section 8.1.2, such failure is the result of an act or omission reasonably within Seller’s control or a breach of i) (a) terminate this Agreement (by Sellerdelivering notice to Seller which includes a waiver of any right, title or interest of Purchaser in the Property) and (b) if Purchaser so elects, pursue an action at law for recovery of Purchaser’s actual out-of-pocket third-party costs incurred as part of Purchaser’s due diligence efforts hereunder, subject to a cap of $50,000.00, which action must be commenced, if at all, within the one hundred eighty (180) day period following the occurrence of such material default of Seller (the “Limitation Period”); provided, and such failure is not waived by Purchaserhowever, or that if, within the Limitation Period, Purchaser gives Seller otherwise defaults in its obligation to close under this Agreement, and any such failure or default continues for five (5) business days following Seller’s receipt of written notice of such default a breach and Seller commences to cure and thereafter terminates such cure effort, Purchaser shall have an additional thirty (30) days from Purchaser, Purchaser’s sole remedy therefor shall be the date of such termination within which to either (a) bring commence an action at law for third-party costs, as aforesaid, as a consequence of Seller’s failure to cure or (ii) treat this Agreement as being in full force and effect and pursue only the specific performance of Seller’s obligation under this Agreement to deliver the documents required under Section 9.1 aboveAgreement, provided that Purchaser must commence any action for specific performance must be initiated no later than sixty within one hundred eighty (60180) days after the date that scheduled Final Closing is otherwise required Date. Purchaser waives any right to occur pursue any other remedy at law or equity for such default of Seller, including, without limitation, any right to seek, claim or obtain damages (other than for costs under this Agreement; (i)(b) above), punitive damages or (b) terminate this Agreement by written notice to consequential damages. In no case shall Seller (which notice shall indicate that a Seller default is alleged by Purchaser) and receive the entire Deposit and reimbursement from Seller of Purchaser’s Costs, in which event neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreement. Notwithstanding anything to the contrary in this Agreement, to the full extent permitted by law, Purchaser waives, and Seller shall not ever be liable to Purchaser forunder any statutory, common law, equitable or other theory of law, either prior to or following the Closing, for any claim against Seller for loss of business opportunitylost rents, loss of profits, loss “benefit of incomethe bargain,” business opportunities or any form of consequential damage in connection with any claim, economic loss liability, demand or other special cause of action in any way or consequential losses or damages or punitive damages. In manner relating to the event that Purchaser elects to seek specific performance under this Section 12.2Property, 37 Seller shall not be obligated to expend any money to change the condition of the Property Property, this Agreement, or any transaction or matter between the state of title parties contemplated hereunder. Purchaser’s remedies hereunder are in addition to the right to receive the return of the Property except as otherwise required by this Agreement. Notwithstanding the foregoing provisions of this Deposit, subject to Section 12.29.4, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition set forth extent it is not applied to the Purchase Price in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19, and this Agreement shall automatically terminate upon the failure of such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit to connection with Purchaser, and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided ’s action for in this Agreementspecific performance.
Appears in 1 contract
Purchaser’s Remedies. If Swerdlow or Seller fails to satisfy shall default in performing any obligation of Swerdlow or Seller under this Contract for any reason, or if any condition to Closing set forth Purchaser's obligation to effect a closing contemplated hereby shall not have been satisfied as of the date scheduled pursuant to Section 12 for said closing, Purchaser may as its sole and exclusive remedy elect to (i) terminate its obligation to effect said closing, in Sections 8.1.1 or 8.1.2 which case the provisions of Section 3(d) shall apply; (provided ii) seek to enforce the equitable remedy of specific performance of this Contract (it being specifically understood and agreed that such remedy shall be available to enforce, among other obligations, Seller's obligations under Section 16(d) with respect to any failure to satisfy construction and leasing of the condition to Closing set forth in Section 8.1.2, such failure is the result of an act or omission reasonably within Seller’s control or a breach of this Agreement by Sellerimprovements at Millenia Center), and such failure is not waived by Purchaser, or Seller otherwise defaults in its obligation to close under this Agreement, and any such failure or default continues for five (5) business days following Seller’s receipt of written notice of such default from Purchaser, Purchaser’s sole remedy therefor shall be to either (a) bring an action for specific performance of Seller’s obligation under this Agreement to deliver the documents required under Section 9.1 above, provided that any action for specific performance must be initiated no later than sixty (60) days after the date that Closing is otherwise required to occur under this Agreement; or (biii) terminate waive the satisfaction of any unsatisfied condition or obligation and consummate the closing; provided, however, that nothing herein shall be construed as limiting the parties' rights and obligations under Section 25 of this Agreement by written notice to Seller Contract (which notice shall indicate except that a Seller default is alleged by Purchaser) and receive the entire Deposit and reimbursement from Seller of Purchaser’s Costs, in which event neither Seller nor if Purchaser shall have any further liability become aware, prior to a closing, of facts which reasonably should have led Purchaser to conclude that Seller or obligation under this Agreement except as expressly provided for Swerdlow then was in this Agreement. Notwithstanding anything default in its representations, warranties or covenants hereunder or that a condition to the contrary in this Agreement, to the full extent permitted by law, Purchaser waivessuch closing has not been satisfied, and Seller Purchaser nonetheless shall not have determined to effect such closing, then Purchaser shall be liable deemed to Purchaser for, have waived any claim right thereafter to pursue any claims under of this Contract against Seller for loss of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In the event that Purchaser elects to seek specific performance under this Section 12.2, 37 Seller shall not be obligated to expend any money to change the condition of the Property or the state of title of the Property except Swerdlow insofar as otherwise required by this Agreement. Notwithstanding the foregoing provisions of this Section 12.2, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition set forth in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19, and this Agreement shall automatically terminate upon the failure such claims arise out of such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit to Purchaser, and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreementfacts).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Price Enterprises Inc)
Purchaser’s Remedies. If Seller fails the sale is not completed as herein provided solely by reason of a default of Seller, Purchaser shall be entitled, as its sole and exclusive remedy, to satisfy any condition to Closing set forth in Sections 8.1.1 or 8.1.2 either (provided that with respect to any failure to satisfy the condition to Closing set forth in Section 8.1.2, such failure is the result of an act or omission reasonably within Seller’s control or a breach of i)
(a) terminate this Agreement (by Sellerdelivering notice to Seller which includes a waiver of any right, title or interest of Purchaser in the Property) and (b) if Purchaser so elects, pursue an action at law for recovery of Purchaser's actual out-of-pocket third-party costs incurred as part of Purchaser's due diligence efforts hereunder, subject to a cap of $25,000, which action must be commenced, if at all, within the thirty (30) day period following the occurrence of such material default of Seller (the "LIMITATION PERIOD"), ; or (ii) treat this Agreement as being in full force and such failure is not waived by Purchaser, or Seller otherwise defaults in its obligation to close under effect and pursue only the specific performance of this Agreement, and any such failure or default continues for five (5) business days following Seller’s receipt of written notice of such default from Purchaser, Purchaser’s sole remedy therefor shall be to either (a) bring an action for specific performance of Seller’s obligation under this Agreement to deliver the documents required under Section 9.1 above, provided that Purchaser must commence any action for specific performance must be initiated no later than sixty within thirty (6030) days after the date that scheduled Final Closing is otherwise required Date. Purchaser waives any right to occur pursue any other remedy at law or equity for such default of Seller, including, without limitation, any right to seek, claim or obtain damages (other than for costs under this Agreement; or (i) (b) terminate this Agreement by written notice to above), punitive damages or consequential damages. In no case shall Seller (which notice shall indicate that a Seller default is alleged by Purchaser) and receive the entire Deposit and reimbursement from Seller of Purchaser’s Costs, in which event neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreement. Notwithstanding anything to the contrary in this Agreement, to the full extent permitted by law, Purchaser waives, and Seller shall not ever be liable to Purchaser forunder any statutory, common law, equitable or other theory of law, either prior to or following the Closing, for any claim against Seller for loss of business opportunitylost rents, loss of profits, loss "benefit of incomethe bargain," business opportunities or any form of consequential damage in connection with any claim, economic loss liability, demand or other special cause of action in any way or consequential losses or damages or punitive damages. In manner relating to the event that Purchaser elects to seek specific performance under this Section 12.2Property, 37 Seller shall not be obligated to expend any money to change the condition of the Property Property, this Agreement, or any transaction or matter between the state of title parties contemplated hereunder. Purchaser's remedies hereunder are in addition to the right to receive the return of the Property except as otherwise required by this Agreement. Notwithstanding the foregoing provisions of this Section 12.2Deposit, Seller shall not be entitled subject to any notice from Purchaser nor any cure period with respect SECTION 9.4, to the closing condition set forth extent it is not applied to the Purchase Price in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19, and this Agreement shall automatically terminate upon the failure of such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit to connection with Purchaser, and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided 's action for in this Agreementspecific performance.
Appears in 1 contract
Samples: Sale, Purchase and Escrow Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Purchaser’s Remedies. (a) If Seller fails to satisfy perform its Obligations under this Agreement in any material respect for any reason except the failure of any condition precedent to Closing set forth in Sections 8.1.1 or 8.1.2 (provided that with respect to any failure to satisfy the condition to Closing set forth in Section 8.1.2, such failure is the result of an act or omission reasonably within Seller’s control or a breach Obligations under this Agreement then Purchaser’s sole remedy shall be to elect one of the following:
(i) to terminate this Agreement by Seller), and such failure is not waived by Purchaser, or giving Seller otherwise defaults in its obligation to close under this Agreement, and any such failure or default continues for five (5) business days following Seller’s receipt of written notice of such default from Purchaserelection prior to or at Closing (the “Default Notice”), whereupon the Escrow Company shall promptly return to Purchaser the Exxxxxx Money and Seller shall pay to Purchaser all of Purchaser’s sole remedy therefor 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 (not to exceed Seven Hundred Fifty Thousand Dollars ($750,000), and neither party shall have any further obligations, except as may be specifically set forth herein;
(ii) to either waive the default and close (asubject to the terms of this Agreement); or
(iii) bring to enforce specific performance of this Agreement, provided that an action for specific performance of Seller’s obligation under this Agreement to deliver the documents required under Section 9.1 above, provided that any action for specific performance must be initiated no later than sixty is filed by Purchaser within thirty (6030) days after of the date that originally scheduled Closing is otherwise required to occur under this Agreement; or Date.
(b) terminate this Agreement by written notice to Seller (which notice shall indicate that a Seller default is alleged by Purchaser) and receive the entire Deposit and reimbursement from Seller of Purchaser’s Costs, in which event neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreement. Notwithstanding anything to the contrary contained herein, if Seller willfully breaches this Agreement and sells any Hotel to someone other than Purchaser while this Agreement is in this Agreementeffect, to the full extent permitted by law, then Purchaser waives, and Seller shall not be liable to Purchaser for, any claim against Seller for loss of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In the event that Purchaser elects to seek specific performance under this Section 12.2, 37 Seller shall not be obligated to expend any money to change the condition of the Property or the state of title of the Property except as otherwise required by this Agreement. Notwithstanding the foregoing provisions of this Section 12.2, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect bring an action against Seller to the closing condition set forth in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19recover all of its damages and costs relating to such breach, including, but not limited to, actual, compensatory, consequential, special and this Agreement shall automatically terminate upon the failure of such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit to Purchaser, and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreementpunitive damages.
Appears in 1 contract
Samples: Agreement for Sale and Purchase (American Realty Capital Hospitality Trust, Inc.)
Purchaser’s Remedies. If Seller fails to satisfy any condition to Closing set forth in Sections 8.1.1 or 8.1.2 (provided that with respect to any failure to satisfy Upon receipt by the condition to Closing set forth in Section 8.1.2, such failure is Purchaser of notice of the result occurrence of an act or omission reasonably within Seller’s control or a breach Event of this Agreement by Seller)Default hereunder, and such failure is not waived by Purchaser, or Seller otherwise defaults in its obligation to close under this Agreement, and at any such failure or default continues for five (5) business days following Seller’s receipt of written notice time thereafter during the continuance of such default from PurchaserEvent of Default, Purchaser’s sole remedy therefor shall be to either (a) bring an action for specific performance of Seller’s obligation under this Agreement to deliver the documents required under Section 9.1 abovePurchaser may, provided that any action for specific performance must be initiated no later than sixty (60) days after the date that Closing is otherwise required to occur under this Agreement; or (b) terminate this Agreement by written notice to Seller (which notice shall indicate that a Seller default is alleged by Purchaser) the Authority and receive the Institution, declare the entire Deposit unpaid principal amount of the Bonds to be due and reimbursement from Seller payable forthwith, to the extent and in accordance with this Bond Agreement, whereupon, such amount shall become forthwith due and payable, both as to principal and interest, without presentment, demand, protest, or other notice of Purchaser’s Costsany kind, all of which are hereby expressly waived, anything contained herein or elsewhere to the contrary notwithstanding, and thereupon the Purchaser may take one or more of the following remedial steps in which event neither Seller nor such order and sequence as the Purchaser in its sole judgment may determine;
(a) take any action at law or in equity to collect the payments, costs and expenses then due and thereafter to become due under this Bond Agreement or any of the other Bond Documents or to enforce performance and observance of any obligation, agreement or covenant of the Institution under this Bond Agreement or under any other Bond Document or to otherwise protect its rights hereunder; or
(b) exercise any and all rights and remedies conferred upon secured parties by the Uniform Commercial Code and other applicable laws. If the Purchaser shall have any further liability or obligation proceeded to enforce the rights of the Purchaser under this Bond Agreement except as expressly provided and such proceedings shall have been discontinued or abandoned for in this Agreement. Notwithstanding anything any reason or shall have been determined adversely to the contrary in this AgreementPurchaser, then the Authority and the Purchaser shall be restored respectively to the full extent permitted by law, Purchaser waivestheir several positions and rights hereunder, and Seller shall not be liable to Purchaser forall rights, any claim against Seller for loss of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In the event that Purchaser elects to seek specific performance under this Section 12.2, 37 Seller shall not be obligated to expend any money to change the condition remedies and powers of the Property or Authority and the state of title of the Property except as otherwise required by this Agreement. Notwithstanding the foregoing provisions of this Section 12.2, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition set forth in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19, and this Agreement shall automatically terminate upon the failure of such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit to Purchaser, and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except continue as expressly provided for in this Agreementthough no such proceedings had taken place.
Appears in 1 contract
Samples: Bond Agreement
Purchaser’s Remedies. If Seller fails (a) (i) all the conditions precedent in Section 7.3 have been satisfied, or if fewer than all of the conditions precedent in Section 7.3 have been satisfied and Sellers have elected (or are required under the terms of Section 7.4) to satisfy any condition to Closing set forth in Sections 8.1.1 or 8.1.2 (provided that consummate the transactions contemplated herein with respect to fewer than all of the Assets, and (ii) in any failure such case, Sellers fail or refuse to satisfy consummate the condition to Closing set forth in Section 8.1.2, such failure is the result of an act or omission reasonably within Seller’s control or a breach of transactions contemplated by this Agreement by Seller), and in accordance with this Agreement with respect to the Assets for which such failure is not conditions precedent have been satisfied or waived by PurchaserPurchasers, or Seller (b) Sellers otherwise defaults are in its obligation to close default under this Agreement, and any such failure or default continues for five (5) business days following Seller’s receipt of written notice of such default from Purchaser, Purchaser’s sole remedy therefor then Purchasers shall be entitled to either (a) bring an action for specific performance of Seller’s obligation under this Agreement to deliver the documents required under Section 9.1 above, provided that any action for specific performance must be initiated no later than sixty (60) days after the date that Closing is otherwise required to occur under this Agreement; or (bx) terminate this Agreement by written notice given to Seller Sellers, and/or (which notice shall indicate y) exercise any other right or remedy Purchasers may have at law or in equity by reason of the default, including specific performance; provided, however, that a Seller Purchasers may only exercise rights and remedies under this clause (y) if Sellers’ default is alleged by Purchaser) and receive the entire Deposit and reimbursement from Seller of Purchaser’s Costs, in which event neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreement. Notwithstanding anything to is the contrary in result of Sellers’ willful or intentional misconduct; and, provided, further, that if Purchasers seek specific enforcement of Sellers’ obligations under this Agreement, Purchasers must purchase all of the Assets (A) that are not materially adversely affected by Sellers’ default(s) under this Agreement and (B) with respect to which all conditions precedent under Section 7.1 have been satisfied or waived by Purchasers under the full extent permitted by law, Purchaser waivesterms of Section 7.2, and Seller Purchasers shall not have the right otherwise to designate specific Assets that Purchasers do not desire to purchase. In no event shall Sellers or Seller Parent be liable to Purchaser forPurchasers for indirect, any claim against Seller for loss of business opportunityincidental, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damagesdamages as a result of Sellers’ default hereunder. In Except for (I) the event that Purchaser elects to seek specific performance under this Section 12.2, 37 Seller shall not be obligated to expend any money to change the condition of the Property or the state of title of the Property except as otherwise required by this Agreement. Notwithstanding the foregoing provisions rights and remedies set forth in clause (b) of this Section 12.28.2, Seller shall not be entitled to any notice from Purchaser nor any cure period as qualified herein, and (II) the rights and remedies expressly provided in Section 8.3 with respect to a Material Breach of a Seller’s Representation or any liability that Sellers may have pursuant to the closing condition set forth provisions of Section 9.2, or any of Sellers’ or Seller Parent’s, other indemnification obligations in Section 8.1.5 favor of Purchasers, Purchasers will have no other rights or remedies against Sellers, Sellers’ Affiliates or any Covered Persons in connection with the required Seller closing delivery set forth in Section 9.1.19, and transactions contemplated by this Agreement shall automatically terminate upon the failure or any breach or alleged breach of such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit to Purchaser, and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreement.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (CreXus Investment Corp.)
Purchaser’s Remedies. If In the event of Seller fails Event of Default, Purchaser shall be entitled to satisfy exercise either one of the following exclusive remedies which shall be Purchaser’s exclusive remedies prior to Closing:
(a) Purchaser may terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit by giving written notice to Seller, in which case neither party shall have any condition to Closing further obligation or liability, except for the obligations set forth in Sections 8.1.1 or 8.1.2 herein (provided that with respect to any failure to satisfy the condition to Closing including without limitation, those set forth in Section 8.1.22.05, such failure is Section 8.05 and Section 8.06), the result of an act or omission reasonably within Seller’s control or a breach provisions which are expressly stated to survive termination of this Agreement by Seller), and such failure is not waived by Purchaserliabilities as Seller may have for such breach or default; or
(b) Purchaser may bring an action to require Seller to specifically perform its obligations hereunder. Notwithstanding the foregoing, or Seller otherwise defaults in its obligation as a condition precedent to close under this Agreement, and Purchaser exercising any such failure or default continues for five (5) business days following Seller’s receipt of written notice of such default from Purchaser, Purchaser’s sole remedy therefor shall be right it may have to either (a) bring an action for specific performance hereunder, Purchaser must commence such an action within one hundred eighty (180) days after Purchaser obtains actual knowledge of the occurrence of Seller’s obligation under this Agreement default. Purchaser agrees that its failure to deliver the documents required under Section 9.1 above, provided that any timely commence such an action for specific performance must within such 180-day period shall be initiated no later than sixty (60) days after deemed a waiver by it of its right to commence an action for specific performance as well as a waiver by it of any right it may have to file or record a notice of lis pendens or notice of pendency of action or similar notice against any portion of the date that Closing is otherwise required to occur under this Agreement; or (b) terminate this Agreement by written notice to Seller (which notice shall indicate that a Seller default is alleged by Purchaser) and receive the entire Deposit and reimbursement from Seller of Purchaser’s Costs, in which event neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreement. Notwithstanding anything to the contrary in this Agreement, to the full extent permitted by law, Purchaser waives, and Seller shall not be liable to Purchaser forProperty, any claim against such action by Purchaser being deemed to be a slander of title and entitle Seller for loss of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive to damages. In the event that of exercise by Purchaser elects to seek specific performance under this Section 12.2, 37 Seller shall not be obligated to expend any money to change the condition of either of the Property or the state of title of the Property except as otherwise required by this Agreement. Notwithstanding the foregoing provisions of this Section 12.2, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition remedies set forth in this Section 8.1.5 or 7.02, Purchaser may recover from Seller all of Purchaser’s out-of-pocket costs and expenses incurred hereunder (including without limitation, the required Seller closing delivery set forth in Section 9.1.19Transaction Costs and any other due diligence costs and reasonable attorneys’ fees and costs), and this Agreement shall automatically terminate upon the failure all other Losses paid or incurred by Purchaser as a result of such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit to Purchaser, and neither Seller nor Purchaser shall have any further liability breach or obligation under this Agreement except as expressly provided for in this Agreementdefault.
Appears in 1 contract
Samples: Purchase and Sale Agreement (First Capital Real Estate Trust Inc)
Purchaser’s Remedies. If the sale is not completed as herein provided by reason of any material default of Seller, Purchaser shall be entitled, as its sole and exclusive remedy, to either (i) terminate this Agreement (by delivering written notice to Seller fails which includes a waiver of any right, title or interest of Purchaser in the Property) in which event Escrow Agent shall refund the Deposit to satisfy any condition Purchaser and Seller shall reimburse Purchaser’s actual out-of-pocket third-party costs incurred as part of Purchaser’s efforts to Closing set forth acquire the Property, subject to a cap of One Hundred Thousand Dollars ($100,000); provided, however, solely in Sections 8.1.1 or 8.1.2 (provided that with respect the event Seller transfers the Property to any failure to satisfy the condition to Closing set forth a third party in Section 8.1.2, such failure is the result of an act or omission reasonably within Seller’s control or a breach violation of this Agreement by Seller)and Purchaser’s remedy of specific performance is thus unavailable, Purchaser shall be entitled to receive payment of Purchaser’s Costs from Seller in an amount not to exceed Five Hundred Thousand Dollars ($500,000) or; (ii) treat this Agreement as being in full force and such failure is not waived by Purchaser, or Seller otherwise defaults in its obligation to close under effect and pursue only the specific performance of this Agreement, and any such failure or default continues for five (5) business days following Seller’s receipt of written notice of such default from Purchaser, Purchaser’s sole remedy therefor shall be to either (a) bring an action for specific performance of Seller’s obligation under this Agreement to deliver the documents required under Section 9.1 above, provided that Purchaser must commence any action for specific performance must be initiated no later than within sixty (60) days after the date that scheduled Closing is otherwise required Date. Purchaser waives any right to occur pursue any other remedy at law or equity for such default of Seller, including, without limitation, any right to seek, claim or obtain damages (other than for costs under this Agreement; or (i) (b) terminate this Agreement by written notice to above), punitive damages or consequential damages. In no case shall Seller (which notice shall indicate that a Seller default is alleged by Purchaser) and receive the entire Deposit and reimbursement from Seller of Purchaser’s Costs, in which event neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreement. Notwithstanding anything to the contrary in this Agreement, to the full extent permitted by law, Purchaser waives, and Seller shall not ever be liable to Purchaser forunder any statutory, common law, equitable or other theory of law, either prior to or following the Closing, for any claim against Seller for loss of business opportunitylost rents, loss of profits, loss “benefit of incomethe bargain,” business opportunities or any form of consequential damage in connection with any claim, economic loss liability, demand or other special cause of action in any way or consequential losses or damages or punitive damages. In manner relating to the event that Purchaser elects to seek specific performance under this Section 12.2Property, 37 Seller shall not be obligated to expend any money to change the condition of the Property Property, this Agreement, or any transaction or matter between the state of title parties contemplated hereunder. Purchaser’s remedies hereunder are in addition to the right to receive the return of the Property except as otherwise required by this Agreement. Notwithstanding the foregoing provisions of this Deposit, subject to Section 12.29.4, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition set forth extent it is not applied to the Purchase Price in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19, and this Agreement shall automatically terminate upon the failure of such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit to connection with Purchaser, and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided ’s action for in this Agreementspecific performance.
Appears in 1 contract
Samples: Sale, Purchase and Escrow Agreement (KBS Strategic Opportunity REIT II, Inc.)
Purchaser’s Remedies. (a) If Seller fails to satisfy secure the appropriate corporate authorization to consummate the transaction contemplated by this Agreement in accordance with Section 8.16 or materially fails to perform or materially breaches any condition obligations or covenants in Section 8.20(b) or Section 8.20(c) hereof, Purchaser will be entitled to Closing set forth in Sections 8.1.1 receive the Deposit from Escrow Agent, this Agreement will terminate and neither Seller nor Purchaser will have any further rights or 8.1.2 obligations under this Agreement other than those rights and obligations that expressly survive the termination of this Agreement.
(provided that with respect b) If Seller fails or refuses to any consummate the transaction contemplated by this Agreement (other than as a result of (i) Seller’s failure to satisfy secure the condition appropriate authorization to Closing consummate the transaction or (ii) Seller’s failure to effectuate the Life Time Fitness Centers Loans Separation Transaction pursuant to Section 8.20(a), for which Purchaser shall have the rights and remedies set forth in Section 8.1.23.8 hereof), such including any failure is by Seller to deliver to Purchaser the result of an act or omission reasonably within Seller’s control or a breach of this Agreement Closing Documents required to be delivered by Seller), and such failure is not waived by PurchaserPurchaser will have the right, or Seller otherwise defaults in its obligation to close under this Agreement, and any such failure or default continues for five (5) business days following Seller’s receipt of written notice of such default from Purchaser, at Purchaser’s sole remedy therefor shall be option, to either (ai) bring an action terminate this Agreement and receive the Deposit from Escrow Agent or (ii) institute a proceeding for specific performance of Seller’s obligation performance.
(c) If following the Closing, Seller materially defaults under this Agreement its obligations set forth in Section 8.20(d), Section 8.20(e) or Section 8.22 hereof, Purchaser shall have the right to deliver the documents required under Section 9.1 abovemake a Claim against Seller for any loss, cost, expense and damages resulting from such default, provided that any action for specific performance must Claim by Purchaser against Seller arising out of such default shall be initiated limited to the actual amount of the loss, cost, expense and damages suffered or incurred by Purchaser as a result of such default (excluding consequential, punitive and similar damages).
(d) Purchaser will have no later than sixty (60) days after rights or remedies against Seller or Seller’s Affiliates, agents, employees, representatives or trustees in connection with the date that Closing is otherwise required to occur under this Agreement; or (b) terminate transaction contemplated by this Agreement by written notice to Seller (which notice shall indicate that a Seller default is alleged by Purchaser) other than the rights and receive the entire Deposit and reimbursement from Seller of Purchaser’s Costs, in which event neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as remedies expressly provided for set forth in this AgreementSection 6.2 and the rights and remedies provided in Section 6.3 below with respect to a Material Breach of a Seller’s Representation. Notwithstanding anything to the contrary contained in this Agreement, Purchaser’s rights under this Article will inure to the full extent permitted by law, benefit of Purchaser waives, only and Seller shall not be liable to Purchaser for, any claim against Seller for loss of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In the event that Purchaser elects to seek specific performance under this Section 12.2, 37 Seller shall not be obligated to expend any money to change the condition of the Property or the state of title of the Property except as otherwise required by this Agreement. Notwithstanding the foregoing provisions of this Section 12.2, Seller shall not be entitled to any notice from Purchaser nor any cure period will terminate with respect to the closing condition set forth in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19each Loan, and this Agreement shall automatically terminate upon the failure transfer of all or any portion of Purchaser’s interest in such condition and/or closing delivery, Escrow Agent shall promptly refund Loan or upon the Deposit acquisition by any successor to Purchaser of Purchaser, and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for ’s interest in this Agreementsuch Loan.
Appears in 1 contract
Samples: Loan Purchase and Sale Agreement (Starwood Property Trust, Inc.)
Purchaser’s Remedies. If Seller fails the sale is not completed as herein provided solely by reason of a default of Seller, Purchaser shall be entitled, as its sole and exclusive remedy, to satisfy any condition to Closing set forth in Sections 8.1.1 or 8.1.2 either (provided that with respect to any failure to satisfy the condition to Closing set forth in Section 8.1.2, such failure is the result of an act or omission reasonably within Seller’s control or a breach of i)
(a) terminate this Agreement (by Sellerdelivering notice to Seller which includes a waiver of any right, title or interest of Purchaser in the Property) and (b) if Purchaser so elects, pursue an action at law for recovery of Purchaser's actual out-of-pocket third-party costs incurred as part of Purchaser's due diligence efforts hereunder, subject to a cap of $25,000, which action must be commenced, if at all, within the thirty (30) day period following the occurrence of such material default of Seller (the "LIMITATION PERIOD"), ; or (ii) treat this Agreement as being in full force and such failure is not waived by Purchaser, or Seller otherwise defaults in its obligation to close under effect and pursue only the specific performance of this Agreement, and any such failure or default continues for five (5) business days following Seller’s receipt of written notice of such default from Purchaser, Purchaser’s sole remedy therefor shall be to either (a) bring an action for specific performance of Seller’s obligation under this Agreement to deliver the documents required under Section 9.1 above, provided that Purchaser must commence any action for specific performance must be initiated no later than sixty within thirty (6030) days after the date that scheduled Final Closing is otherwise required Date. Purchaser waives any right to occur pursue any other remedy at law or equity for such default of Seller, including, without limitation, any right to seek, claim or obtain damages (other than for costs under this Agreement; or (i) (b) terminate this Agreement by written notice to above), punitive damages or consequential damages. In no case shall Seller (which notice shall indicate that a Seller default is alleged by Purchaser) and receive the entire Deposit and reimbursement from Seller of Purchaser’s Costs, in which event neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreement. Notwithstanding anything to the contrary in this Agreement, to the full extent permitted by law, Purchaser waives, and Seller shall not ever be liable to Purchaser forunder any statutory, common law, equitable or other theory of law, either prior to or following the Closing, for any claim against Seller for loss of business opportunitylost rents, loss of profits, loss "benefit of incomethe bargain," business opportunities or any form of consequential damage in connection with any claim, economic loss liability, demand or other special cause of action in any way or consequential losses or damages or punitive damages. In manner relating to the event that Purchaser elects to seek specific performance under this Section 12.2Property, 37 Seller shall not be obligated to expend any money to change the condition of the Property Property, this Agreement, or any transaction or matter between the state of title parties contemplated hereunder. Purchaser's remedies hereunder are in addition to the right to receive the return of the Property except as otherwise required by this Agreement. Notwithstanding the foregoing provisions of this Deposit, subject to Section 12.29.4, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition set forth extent it is not applied to the Purchase Price in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19, and this Agreement shall automatically terminate upon the failure of such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit to connection with Purchaser, and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided 's action for in this Agreementspecific performance.
Appears in 1 contract
Samples: Sale, Purchase and Escrow Agreement (Behringer Harvard Short Term Opportunity Fund I Lp)
Purchaser’s Remedies. If Seller Lender Agent or any Lender fails to satisfy any condition deliver the Lender Closing Documents pursuant to Closing set forth in Sections 8.1.1 or 8.1.2 (provided that with respect to any failure to satisfy the condition to Closing set forth in Section 8.1.2, such failure is the result of an act or omission reasonably within Seller’s control or a breach of this Agreement by Seller), 3.2 hereof and such failure is not waived by Purchaser, default remains uncured for thirty (30) days after Lender Agent or Seller otherwise defaults in its obligation to close under this Agreement, and any such failure or default continues for five (5) business days following SellerXxxxxx’s receipt of written notice of such default Notice thereof from Purchaser, Purchaser’s Purchaser shall have the right, as its sole remedy therefor shall be and exclusive remedies to either (a) bring an action against Lenders and/or Lender Agent for specific performance to enforce the terms of Seller’s obligation under this Agreement to deliver the documents required under Section 9.1 above, (provided that the commencement of any action for specific performance must be initiated no later than sixty (60) instituted within 30 days after the date that Closing occurrence of such default (which, for avoidance of doubt, default is otherwise required only deemed to occur under this Agreement; have occurred after the expiration of the foregoing thirty (30) day cure period) and if such action is not commenced within such time frame, Purchaser shall be deemed to have waived the right to bring an action for specific performance), or (b) to terminate this Agreement by written notice upon Notice to Seller Lender Agent, in which case, (which notice i) this Agreement shall indicate that a Seller default is alleged by Purchaserthereupon terminate and become void and of no further force or effect, (ii) and receive the entire Deposit and reimbursement from Seller Lenders, severally, shall be responsible for reimbursing Purchaser for their respective pro rata share of Purchaser’s Costsreasonable out-of-pocket costs actually incurred to third parties in connection with this Agreement and the Short Sale Agreement in an aggregate amount not to exceed $100,000, in which event reimbursement obligation shall survive the Closing or the earlier termination or expiration of this Agreement, and (iii) neither Seller Lender Agent, Lenders nor Purchaser shall have any further liability rights or obligation obligations under this Agreement except as expressly provided for in this Agreement. Notwithstanding anything to the contrary in this Agreement, except those, if any, which are expressly stated to survive the full extent permitted by law, Purchaser waives, and Seller shall not be liable to Purchaser for, any claim against Seller for loss of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In the event that Purchaser elects to seek specific performance under this Section 12.2, 37 Seller shall not be obligated to expend any money to change the condition of the Property Closing or the state earlier termination or expiration of title of the Property except as otherwise required by this Agreement. Notwithstanding the foregoing provisions of this Section 12.2, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition set forth in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19, and this Agreement shall automatically terminate upon the failure of such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit to Purchaser, and neither Seller nor Purchaser shall have any further liability or obligation under this Agreement except as expressly provided for in this Agreement.
Appears in 1 contract
Samples: Facilitation Agreement
