Remedies for Seller’s Breach. In the event the sale of the Property is not consummated because of default under or breach of this Agreement on the part of Seller, Buyer shall have the option, as its sole and exclusive remedy at law or in equity, to either (i) terminate this Agreement by delivery of written notice of termination to Seller, whereupon the Deposit shall be returned to Buyer, Seller shall reimburse Buyer for Buyer’s actual out-of-pocket third-party costs and expenses in connection with its investigation of the Property in an amount not to exceed Fifty Thousand Dollars ($50,000), and Buyer shall provide invoices to Seller reflecting such costs and expenses, and Buyer and Seller shall each be released from all other liability hereunder (except for those provisions which recite that they survive termination); (ii) extend the Closing Date for such reasonable period of time as may be required to permit Seller to cure or remedy such breach (provided such period of time shall not exceed thirty (30) days unless such greater period of time is agreed to in writing by Seller) or (iii) continue this Agreement and seek the equitable remedy of specific performance. The foregoing options are mutually exclusive and are the exclusive rights and remedies available to Buyer at law or in equity in the event the sale of the Property is not consummated because of Seller’s default under or breach of this Agreement. Buyer hereby waives any and all rights it may now or hereafter have to pursue any other remedy or recover any other damages on account of any such breach or default by Seller, including, without limitation, loss of bargain, special, punitive, compensatory or consequential damages. Buyer shall be deemed to have elected its remedy under clause (i) of this paragraph if Buyer fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located, on or before thirty (30) days following the date upon which Closing was to have occurred. Notwithstanding anything herein to the contrary, in the event that Seller conveys the Property to a third party prior to Closing or any earlier termination or deemed termination of this Agreement, Buyer shall have the right to pursue any remedy at law or in equity including, without limitation, a claim for money damages, provided that any such claim for money damages shall not exceed Seven Hundred Fifty Thousand Dollars ($750,000.00).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cole Corporate Income Trust, Inc.)
Remedies for Seller’s Breach. In If, on or before the event the sale Closing Date, (x) Buyer is or becomes aware that any of the Property is not consummated because of default under representations and warranties made by Seller in this Agreement, or breach of in any document or instrument executed by Seller and delivered to Buyer in connection with this Agreement on or the part Closing hereunder, including the representations made in this Agreement, are not true and correct in any material respect that would adversely affect Buyer’s use and enjoyment of Sellerthe Premises, or (y) Buyer shall have is or becomes aware that there is any material inaccuracy in any certifications, schedules, or statements prepared and executed by Seller and delivered to Buyer, or (z) Seller has failed to perform in any respect any of the optioncovenants, as its sole agreements and exclusive remedy at law indemnities contained herein or in equityany of the aforesaid other documents and instruments to be performed by it within the time for performance as specified herein (including Seller’s obligation to close) or therein, then, provided Buyer has notified Seller in writing of same and Seller has failed to either cure such condition or circumstance or non-performance within ten (10) days of receipt of such notice, Buyer’s remedies on account of any such breach shall be to:
(i) terminate this Agreement by delivery of delivering written notice of termination Buyer’s election to Sellerterminate to Seller and Escrow Agent, whereupon in which event the Xxxxxxx Money Deposit (and all interest thereon) shall be returned immediately to BuyerBuyer and, if such breach is a Willful Breach (as defined below), Seller shall promptly reimburse Buyer for Buyer’s its actual third party out-of-pocket third-expenses incurred in connection with this Agreement and the transactions contemplated hereby (including, but, not limited to reasonable attorneys’ fees and expenses) up to $125,000 in the aggregate, and neither party shall have any rights, duties or obligations hereunder, other than the obligations and rights set forth herein that expressly survive the termination of this Agreement; or
(ii) complete the purchase of the Premises without any adjustment to the Purchase Price, in which event Buyer waives its right to seek reimbursement from Seller for all of its damages incurred as a result of Seller’s breach hereunder; or
(iii) waive any claim for damages (except for reimbursement for costs and expenses as set forth in connection with its investigation this clause (iii)) and file an action (the “Specific Performance Action”) for specific performance of the Property in an amount not this Agreement to exceed Fifty Thousand Dollars ($50,000)compel Seller to close, and and, if such breach is a Willful Breach, Buyer shall provide invoices be entitled to Seller reflecting such reimbursement for all of its reasonable out-of-pocket costs and expenses, and Buyer and including reasonable attorneys’ fees, incurred in connection with such Specific Performance Action, if it prevails. Seller shall each be released from all other liability hereunder (except for those provisions which recite that they survive termination); (ii) extend the Closing Date for such reasonable period of time as may be required to permit Seller to cure or remedy such breach (provided such period of time shall not exceed thirty (30) days unless such greater period of time is agreed to in writing by Seller) or (iii) continue this Agreement and seek the equitable remedy of specific performance. The foregoing options are mutually exclusive and are the exclusive rights and remedies available to Buyer at law or in equity in the event the sale of the Property is not consummated because of Seller’s default under or breach of this Agreement. Buyer hereby expressly waives any and all rights it may now or hereafter have to pursue any other remedy or recover any other damages on account of any such breach or default by Seller, including, without limitation, loss of bargain, special, punitive, compensatory or consequential damages. Buyer shall be deemed to have elected its remedy under clause (i) of this paragraph if Buyer fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located, on or before thirty (30) days following the date upon which Closing was to have occurred. Notwithstanding anything herein to the contrary, in the event that Seller conveys the Property to a third party prior to Closing or any earlier termination or deemed termination of this Agreement, Buyer shall have the right to pursue any remedy at law or in equity including, without limitation, demand that Buyer post a claim for money damages, provided that any such claim for money damages shall not exceed Seven Hundred Fifty Thousand Dollars ($750,000.00)bond to proceed with the Specific Performance Action.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Griffin Capital Essential Asset REIT, Inc.)
Remedies for Seller’s Breach. In the event the sale of the Property is not consummated because of default under or breach of this Agreement on the part of Seller, Buyer shall have the option, as its sole and exclusive remedy at law or in equity, to either (i) terminate this Agreement by delivery of written notice of termination to Seller, whereupon the Deposit shall be returned to Buyer, Seller shall reimburse Buyer for Buyer’s actual out-of-pocket third-party costs and expenses in connection with its investigation of the Property in an amount not to exceed Fifty Thousand Dollars ($50,000), and Buyer shall provide invoices to Seller reflecting such costs and expenses, and Buyer and Seller shall each be released from all other liability hereunder (except for those provisions which recite that they survive termination); , the Deposit shall be returned to Buyer and Seller shall reimburse Buyer for all of Buyer’s reasonable, accountable, third-party due diligence costs, evidenced by third-party invoices, such reimbursement not to exceed Eighty Thousand Dollars (ii) extend the Closing Date for such reasonable period of time as may be required to permit Seller to cure or remedy such breach (provided such period of time shall not exceed thirty (30) days unless such greater period of time is agreed to in writing by Seller$80,000) or (iiiii) continue this Agreement and seek the equitable remedy of specific performance. The foregoing options are mutually exclusive provisions of this Section 10(b) to the contrary notwithstanding, if Buyer elects to pursue the equitable remedy of specific performance and are in any such action for specific performance, the exclusive court rules that the remedy of specific performance is not available to Buyer, then Buyer may avail itself of the rights and remedies available to Buyer at law or in equity in under this Section 10(b)(i) and the event the sale running of the Property is not consummated because of Seller’s default under or breach of this Agreement. Buyer hereby waives any and all rights it may now statutes of limitation, statutes of repose, passage of time relating to laches and other statutes, rules, doctrines or hereafter have to pursue principles which impose any time limits for commencing any suit, action, arbitration, mediation or other remedy or recover any other damages proceeding on account of any such breach or default by Seller, including, without limitation, loss of bargain, special, punitive, compensatory or consequential damages. Buyer Seller shall be deemed to have elected its remedy suspended and tolled while Buyer is pursuing any such action for specific performance. The foregoing does not limit Seller’s liability under clause (iSection 22(l) of this paragraph if Buyer fails to file suit for specific performance against Seller in Agreement or under any indemnity or other provision of this Agreement that, by its terms, survives a court having jurisdiction in the county and state in which the Property is located, on or before thirty (30) days following the date upon which Closing was to have occurred. Notwithstanding anything herein to the contrary, in the event that Seller conveys the Property to a third party prior to Closing or any earlier termination or deemed termination of this Agreement, Buyer shall have the right Agreement or is to pursue any remedy at law or in equity including, without limitation, a claim for money damages, provided that any such claim for money damages shall not exceed Seven Hundred Fifty Thousand Dollars ($750,000.00).be performed after Closing
Appears in 1 contract
Samples: Purchase and Sale Agreement (NorthStar Healthcare Income, Inc.)
Remedies for Seller’s Breach. In the event the sale of the Property is not consummated because of default under or breach of this Agreement on the part of Seller, Buyer shall have the option, as its sole and exclusive remedy at law or in equity, to either (i) terminate this Agreement by delivery of written notice of termination to Seller, whereupon the Deposit shall be returned to Buyer, Seller shall reimburse Buyer for Buyer’s actual out-of-pocket third-party costs and expenses in connection with its investigation of the Property in an amount not to exceed Fifty Seventy-Five Thousand Dollars ($50,000)75,000) in the aggregate, and Buyer shall provide invoices to Seller reflecting such costs and expenses, and Buyer and Seller shall each be released from all other liability hereunder (except for those provisions which recite that they survive termination); or (ii) extend the Closing Date for such reasonable period of time as may be required to permit Seller to cure or remedy such breach (provided such period of time shall not exceed thirty (30) days unless such greater period of time is agreed to in writing by Seller) or (iii) continue this Agreement and seek the equitable remedy of specific performance. The foregoing options are mutually exclusive and are the exclusive rights and remedies available to Buyer at law or in equity in the event the sale of the Property is not consummated because of Seller’s default under or breach of this Agreement. Buyer hereby waives any and all rights it may now or hereafter have to pursue any other remedy or recover any other damages on account of any such breach or default by Seller, including, without limitation, loss of bargain, special, punitive, compensatory or consequential damages. Buyer shall be deemed to have elected its remedy under clause (i) of this paragraph Paragraph 10(b) if Buyer fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located, on or before thirty (30) days following the date upon which Closing was to have occurred. Notwithstanding anything herein to the contrary, in the event that Seller conveys the Property to a third party prior to Closing or any earlier termination or deemed termination of this Agreement, Buyer shall have the right to pursue any remedy at law or in equity including, without limitation, a claim for money damages, provided that any such claim for money damages shall not exceed Seven Hundred Fifty Thousand Dollars ($750,000.00).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Rexford Industrial Realty, Inc.)
Remedies for Seller’s Breach. In the event the sale of the Property is not consummated because of default under or breach of this Agreement on the part of Seller, Buyer shall have the option, as its sole and exclusive remedy at law or in equity, to either (i) terminate this Agreement by delivery of written notice of termination to Seller, whereupon the Deposit shall be returned to Buyer, Seller shall reimburse Buyer for Buyer’s actual out-of-pocket third-party costs and expenses in connection with its investigation of the Property in an amount not to exceed Fifty Seventy-Five Thousand Dollars ($50,00075,000), and Buyer shall provide invoices to Seller reflecting such costs and expenses, and Buyer and Seller shall each be released from all other liability hereunder (except for those provisions which recite that they survive termination); (ii) extend the Closing Date for such reasonable period of time as may be required to permit Seller to cure or remedy such breach (provided such period of time shall not exceed thirty (30) days unless such greater period of time is agreed to in writing by Seller) or (iii) continue this Agreement and seek the equitable remedy of specific performance. The foregoing options are mutually exclusive and are the exclusive rights and remedies available to Buyer at law or in equity in the event the sale of the Property is not consummated because of Seller’s default under or breach of this Agreement. Buyer hereby waives any and all rights it may now or hereafter have to pursue any other remedy or recover any other damages on account of any such breach or default by Seller, including, without limitation, loss of bargain, special, punitive, compensatory or consequential damages. Buyer shall be deemed to have elected its remedy under clause (i) of this paragraph if Buyer fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located, on or before thirty (30) days following the date upon which Closing was to have occurred. Notwithstanding anything herein to the contrary, in the event that Seller conveys the Property to a third party prior to Closing or any earlier termination or deemed termination of this Agreement, Buyer shall have the right to pursue any remedy at law or in equity including, without limitation, a claim for money damages, provided that any such claim for money damages shall not exceed Seven Hundred Fifty Thousand One Million Dollars ($750,000.001,000,000.00).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cole Corporate Income Trust, Inc.)