Common use of Seller Pre-Closing Defaults Clause in Contracts

Seller Pre-Closing Defaults. (a) In the event that any Seller has defaulted in any material respect under this Agreement with respect to its obligations hereunder (a “Defaulting Seller”), and provided that Buyer was not in breach in any material respect of this Agreement, then, subject to the provisions set forth in Section 14.3, Buyer shall be entitled, as its sole and exclusive remedy, and Buyer hereby waives its right to pursue any other remedy at law or in equity, to either: (i) treat this Agreement as being in full force and effect and pursue only the remedy of specific performance of the Defaulting Sellers’ obligations to deliver the documents described in Section 13.1(a) hereof; or (ii) terminate this Agreement either (1) solely with respect to the Defaulting Seller and the Individual Property to which such default relates or (2) with the entire specific Portfolio in which the Property is located, and receive a return of a pro rata portion of the Deposit as shown on Schedule 2.1(a), together with any interest earned thereon (and the parties shall jointly instruct Escrow Holder to promptly return to Buyer such pro rata portion of the Deposit shown on Schedule 2.1(a), together with any interest earned thereon). In the event that either (i) the Seller has defaulted in any material respect under the Company Agreement, and provided that Buyer was not in breach in any material respect of the Company Agreement, or (ii) if Seller shall have defaulted in any material respect under the 4807 Agreement and has not terminated the Option and removed the same of record, and Buyer is not in breach in any material respect of the 4807 Agreement, Buyer may exercise its remedy set forth in Section 14.2(a)(ii)(2) above. As a condition precedent to Buyer’s exercising any right it may have to bring an action for specific performance hereunder, Buyer must commence such action for specific performance within thirty (30) days after the date scheduled for the applicable Closing. Buyer agrees that its failure to timely commence such an action for specific performance within such thirty (30) day period shall be deemed a waiver by it of its right to commence an action for specific performance as well as a waiver by it of any right it may have to file or record a notice of lis pendens or notice of pendency of action or similar notice against any portion of the Property. In no case shall Buyer seek punitive damages or consequential damages. It is understood that a default with respect to one Seller or its Individual Property shall not extend the Closing Date for any unrelated Portfolio or excuse Buyer’s performance hereunder with respect to the Sellers and Properties of any unrelated Portfolios. (b) If prior to the Closing Date Buyer has or obtains knowledge that a Seller has defaulted on its obligations hereunder in any respect, and Buyer nevertheless proceeds with the Closing, then the default by such Seller as to which Buyer shall have such knowledge shall be deemed waived by Buyer and Sellers shall have no liability to Buyer or its successors and assigns in respect thereof. Buyer shall promptly notify Sellers in writing if Buyer has or obtains knowledge that a Seller has defaulted on its obligations hereunder in any respect.

Seller Pre-Closing Defaults. (a) 18.2.1 In the event that any on the Closing Date Seller has defaulted on its obligations hereunder in any material respect under this Agreement with respect to its obligations hereunder (a “Defaulting Seller”), and provided that Buyer was not in breach in any material respect of this Agreementrespect, then, subject to the provisions set forth in Section 14.3below, Buyer Purchaser shall be entitled, as its sole and exclusive remedy, and Buyer hereby waives its right to pursue any other remedy at law or in equity, to either: (ix) treat this Agreement as being in full force and effect and pursue only the remedy of specific performance of the Defaulting Sellers’ obligations to deliver the documents described in Section 13.1(a) hereofagainst Seller; or (iiy) terminate this Agreement either and (1i) solely with respect to the Defaulting Seller and the Individual Property to which such default relates or (2) with the entire specific Portfolio in which the Property is located, and receive a return of a pro rata portion of the Deposit as shown on Schedule 2.1(a), together with any interest earned thereon (from Escrow Agent and the parties shall jointly instruct Escrow Holder to promptly return to Buyer such pro rata portion of the Deposit shown on Schedule 2.1(a), together with any interest earned thereon). In the event that either (i) the Seller has defaulted in any material respect under the Company Agreement, and provided that Buyer was not in breach in any material respect of the Company Agreement, or (ii) if recover all of the third-party, out-of-pocket, documented costs actually incurred by Purchaser in connection with the transactions contemplated hereby, not to exceed One Hundred Thousand and No/100 Dollars ($100,000.00), and Seller shall not have defaulted in any material respect under the 4807 Agreement and has further liability or obligation to Purchaser hereunder nor shall Purchaser have any further liability or obligation to Seller hereunder, except for such obligations (but not terminated the Option and removed the same of record, and Buyer is not in breach in any material respect liabilities) of the 4807 parties respectively as are specifically stated to survive the termination of this Agreement, Buyer may exercise its remedy set forth in Section 14.2(a)(ii)(2) above. As a condition precedent to Buyer’s exercising . 18.2.2 Purchaser waives any right it may have to bring an action pursue any other remedy at law or in equity for specific performance hereundersuch default of Seller, Buyer must commence such action for specific performance within thirty (30) days after the date scheduled for the applicable Closing. Buyer agrees that its failure to timely commence such an action for specific performance within such thirty (30) day period shall be deemed a waiver by it of its including, without limitation, any right to commence an action for specific performance as well as a waiver by it seek, claim or obtain damages, other than in the case of any right it may have to file or record a notice of lis pendens or notice of pendency of action or similar notice against any portion of the Property. In Seller’s fraud, but in no case shall Buyer Purchaser seek punitive damages or shall Seller be liable for indirect, punitive, special or consequential damages. It is understood that a default with respect to one Seller or its Individual Property shall not extend the Closing Date for any unrelated Portfolio or excuse Buyer’s performance hereunder with respect Notwithstanding anything contained herein to the Sellers and Properties of any unrelated Portfolios. (b) If contrary, if prior to the Closing Date Buyer Date, Purchaser has or obtains actual knowledge that a (a) Seller has defaulted on its obligations hereunder in any respect, and Buyer Purchaser nevertheless proceeds with the Closing, then the default by such Seller as to which Buyer Purchaser shall have such knowledge shall be deemed waived by Buyer Purchaser and Sellers Seller shall have no liability to Buyer Purchaser or its successors and assigns in respect thereof or (b) any of Seller’s representations or warranties set forth in Article 9 are untrue in any respect, and Purchaser nevertheless proceeds with the Closing, then the breach by Seller of the representations and warranties as to which Purchaser shall have such knowledge shall be deemed waived by Purchaser, such representations and warranties shall be deemed modified to conform them to the information that Purchaser shall have knowledge of and Seller shall have no liability to Purchaser or its successors or assigns in respect thereof. Buyer shall promptly notify Sellers in writing if Buyer If Purchaser has or obtains knowledge that a (i) Seller has defaulted on its obligations hereunder in any respect or (ii) any of Seller’s representations or warranties set forth in Article 9 are untrue in any material respect, Purchaser shall so notify Seller in writing (x) on or before the date that is the second (2nd) Business Day after obtaining such knowledge, or (y) on or before the Closing Date if Purchaser obtains such knowledge one (1) Business Day prior to the Closing Date or on the Closing Date.

Seller Pre-Closing Defaults. (a) In the event that any on the Closing Date Seller has defaulted on its material obligations hereunder in any material respect under this Agreement with respect to its obligations hereunder (a “Defaulting Seller”)respect, and provided that Buyer Purchaser was ready, willing, and able to consummate Closing on the Closing Date and was not in breach in any material respect of this Agreement, then, subject to the provisions set forth in Section 14.3, Buyer Purchaser shall be entitled, as its sole and exclusive remedy, provided that Purchaser is not then in default under this Agreement beyond any applicable notice and Buyer cure period, and Purchaser hereby waives its right to pursue any other remedy at law or in equity, to either: (ia) treat this Agreement as being in full force and effect and pursue only the remedy of specific performance of the Defaulting Sellers’ Seller’s obligations to deliver the documents described in Section 13.1(aSections 21(a) and 21(c) hereof; or (iib) terminate this Agreement either (1) solely with respect to the Defaulting Seller and the Individual Property to which such default relates or (2) with the entire specific Portfolio in which the Property is located, and receive a return of a pro rata portion of the Deposit as shown on Schedule 2.1(a), together with any interest earned thereon (and the parties shall jointly instruct the Escrow Holder Agent to promptly return to Buyer such pro rata portion Purchaser the Deposit) and the reasonable out-of-pocket costs and expenses incurred by Purchaser in conducting its due diligence investigations, negotiating this Agreement, preparing for Closing and in obtaining the return of the Deposit, up to, but not more than, $200,000. If the default by Seller of its obligation to close under this Agreement shall result from the act of Seller to sell the Property to a third party and provided that Purchaser is not then in default beyond any applicable notice and cure period,, Purchaser shall be entitled to receive a return of the Deposit shown on Schedule 2.1(a), together with any interest earned thereon). In (and the event that either parties shall jointly instruct the Escrow Agent to promptly return to Purchaser the Deposit) and Seller shall (i) reimburse the Seller has defaulted reasonable out-of-pocket expenses incurred by Purchaser in any material respect under the Company conducting its due diligence investigations, negotiating this Agreement, preparing for Closing and provided that Buyer was not in breach in any material respect obtaining the return of the Company AgreementDeposit, or up to, but not more than, $200,000, and (ii) if agree not to execute a letter of intent or agreement to sell the Property to a third party unrelated to Seller shall have defaulted in any material respect under for a period of twelve months following the 4807 Agreement and has not terminated the Option and removed the same of record, and Buyer is not in breach in any material respect of the 4807 Agreement, Buyer may exercise its remedy set forth in Section 14.2(a)(ii)(2) aboveEffective Date. As a condition precedent to BuyerPurchaser’s exercising any right it may have to bring an action for specific performance hereunder, Buyer Purchaser must commence such action for specific performance within thirty twenty (3020) days after the date scheduled for Closing and provide reasonably sufficient evidence to Seller that Purchaser is ready, willing, and able to consummate Closing, including without limitation evidence of its ability to fund the applicable ClosingPurchase Price. Buyer Purchaser agrees that its failure to timely commence such an action for specific performance within such thirty (30) day period shall be deemed a waiver by it of its right to commence an action for specific performance as well as a waiver by it of any right it may have to file or record a notice of lis pendens or notice of pendency of action or similar notice against any portion of the Property. In no case shall Buyer Purchaser seek punitive damages or consequential damages. It is understood that a default with respect to one Seller or its Individual Property shall not extend the Closing Date for any unrelated Portfolio or excuse Buyer’s performance hereunder with respect to the Sellers and Properties of any unrelated Portfolios. (b) If prior to the Closing Date Buyer Purchaser has or obtains knowledge that a Seller has defaulted on its obligations hereunder in any respect, and Buyer Purchaser nevertheless proceeds with the Closing, then the default by such Seller as to which Buyer Purchaser shall have such knowledge shall be deemed waived by Buyer Purchaser and Sellers Seller shall have no liability to Buyer Purchaser or its successors and assigns in respect thereof. Buyer Purchaser shall promptly notify Sellers Seller in writing within two (2) business days if Buyer Purchaser has or obtains knowledge that a Seller has defaulted on its obligations hereunder in any respect.