Seller’s Default. If Seller breaches any of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreement.
Appears in 4 contracts
Samples: Purchase and Sale Agreement (Columbia Equity Trust, Inc.), Purchase and Sale Agreement (Columbia Equity Trust, Inc.), Purchase and Sale Agreement (Columbia Equity Trust, Inc.)
Seller’s Default. If Seller breaches any of its representations, warranties, covenants and/or agreements hereunder or fails to consummate Should the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully Sellers fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller give Notice of Seller’s obligations to convey the Property to Purchaser Readiness in accordance with Clause 5 a) or fail to be ready to validly complete a legal transfer by the terms date stipulated in line 61 the Buyers shall have the option of cancelling this Agreement provided always that the Sellers shall be granted a maximum of 3 banking days after Notice of Readiness has been given to make arrangements for the documentation set out in Clause 8. If after Notice of Readiness has been given but before the Buyers have taken delivery, the Vessel ceases to be physically ready for delivery and conditions is not made physically ready again in every respect by the date stipulated in line 61 and new Notice of This contract is a computer generated copy of the SALEFORM 1993 form, printed under license from the Norwegian Shipbrokers’ Association, using the BIMCO Charter Party Editor. Any insertion or deletion to the form must be clearly visible. In event of any modification being made to the preprinted text of this Agreementdocument, which is not clearly visible, the original document, as recommended by BIMCO, shall apply. The Norwegian Shipbrokers’ Association and BIMCO assume no responsibility for any loss or damage caused as a result of discrepancies between the original document and this document. Readiness given, the Buyers shall retain their option to cancel. In no the event shall Purchaser be entitled that the Buyers elect to monetary damages for a failure of Seller to close hereunder, cancel this Agreement the deposit together with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser interest earned shall be entitled released to recover from Seller Purchaser’s reasonable, out-of-pocket them immediately. Should the Sellers fail to give Notice of Readiness by the date stipulated in line 61 or fail to be ready to validly complete a legal transfer as aforesaid they shall make due diligence costs compensation to the Buyers for their loss and for all expenses incurred in connection together with this Agreement, including reasonable attorney’s fees (collectively, interest if their failure is due to proven negligence and whether or not the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of Buyers cancel this Agreement.
Appears in 3 contracts
Samples: Memorandum of Agreement for Sale and Purchase of Ships (StealthGas Inc.), Memorandum of Agreement for Sale and Purchase of Ships (StealthGas Inc.), Memorandum of Agreement for Sale and Purchase of Ships (StealthGas Inc.)
Seller’s Default. If Seller breaches the sale contemplated hereby is not consummated because of a material default of Seller, then, so long as Buyer has performed or tendered performance of all of Buyer’s material obligations in accordance with this Agreement, and upon written notice from Buyer to Seller, Buyer shall have the right to exercise any of its representations, warranties, covenants and/or agreements hereunder or fails the following remedies:
6.2.1 Waive such failure and proceed to consummate the purchase and sale contemplated herein by the Closing Datewith no reduction in the Purchase Price; provided, or ifhowever, that this provision will not limit Buyer’s right to receive reimbursement for reasonable attorney’s fees pursuant to Section 5.2 above, 9.9 below in connection with any Related Seller has defaulted under any legal proceedings instituted by either party or Escrow Holder with respect to the enforcement of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the nor waive or affect Seller’s indemnity obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due or Buyer’s rights to such default). Alternativelyenforce those indemnity obligations, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller nor waive or affect any of Seller’s other obligations under this Agreement to be performed after the Closing or Buyer’s rights to enforce those obligations.
6.2.2 Treat this Agreement as being in full force and effect and pursue an action for specific performance to cause Seller to convey the Property to Purchaser in accordance with Buyer pursuant to the terms and conditions of this Agreement. In no event shall Purchaser be entitled ; provided, however, Buyer must commence any such actions for specific performance within sixty (60) days of the Closing Date.
6.2.3 Terminate this Agreement by notice to monetary damages for a failure of Seller to close hereunderthat effect, with in which event the exception that in the case of a willful failure of Seller to close parties hereto shall have no further obligations hereunder after the foregoing ten (10) day notice and cure periodexcept those which expressly survive termination hereof, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser Buyer shall be entitled to (i) recover from Seller Purchaser’s reasonablethe full amount of the Deposit, and (ii) recover up to $20,000.00 for actual third-party out-of-pocket due diligence costs and expenses incurred in connection with Buyer’s inspection and due diligence investigation of the Property.
6.2.4 Except as expressly set forth in this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure Buyer waives any right to pursue any other remedy at law or equity for such default of Seller is a failure Seller, including, without limitation, any right to seek, claim or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration obtain damages, punitive damages or earlier termination of this Agreementconsequential damages.
Appears in 3 contracts
Samples: Real Estate Purchase and Sale Agreement (Medalist Diversified REIT, Inc.), Real Estate Purchase and Sale Agreement (Medalist Diversified REIT, Inc.), Real Estate Purchase and Sale Agreement (Medalist Diversified REIT, Inc.)
Seller’s Default. If Seller breaches fails to perform any of its representationsmaterial obligations under this Agreement in any material respect, warrantiesPurchaser shall provide Seller with written notice describing such default; provided, covenants and/or agreements hereunder or however, Seller shall not be entitled to any notice and cure relating to Seller's failure to comply with its obligations under Section 3.2 of this Agreement. In the event Seller fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such receipt of written notice, then Purchaser shall be entitled Purchaser, at its option to notify Seller of the election by Purchaser to and as its sole and exclusive remedy, may (i) terminate this Agreement, whereupon in which case the Escrow Agent shall deliver the Deposit to Purchaser, and if such material breach is (x) a breach by Seller of any representation or warranty which results or would result in an aggregate diminution in value to Purchaser of the acquisition of the Property caused by such breach of representations and warranties set forth in Section 6 of at least one percent (1%) (other than a Non-Breach Inaccuracy or a breach which Purchaser had knowledge of (including information contained in the Submission Matters) prior to the expiration of the Due Diligence Period) or (y) a material breach by Seller of its material obligations under this Agreement, then Seller shall pay to Purchaser damages equal to the aggregate amount of out of pocket costs paid or incurred by Purchaser in negotiating and entering into this Agreement, performing its due diligence and audit, obtaining the New Franchise Agreement, and preparing for the Closing, not to exceed $100,000.00, and upon return of the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach payment by Seller of Seller’s obligations to convey the Property damages due to Purchaser in accordance with (which Seller agrees to pay within ten (10) days after delivery of a demand notice from Purchaser accompanied by verification of its expenses paid or incurred), this Agreement shall terminate, and Seller and Purchaser shall have no further rights, liabilities, or obligations under this Agreement, except those which expressly survive the termination of this Agreement; (ii) seek to specifically enforce the terms and conditions of this Agreement. In no event Agreement (in order to maintain an action for specific performance, Purchaser shall not be required to have delivered to the Title Company the remaining balance of the cash portion of the Purchase Price as long as Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been is ready, willing willing, and able to closedo so, and Purchaser furnishes reasonable evidence of Purchaser's ability to timely perform all obligations of Purchaser); or (iii) proceed to Closing notwithstanding such default. However, notwithstanding the foregoing, the limit in (i) on Purchaser's damage remedy shall not be entitled applicable if, through willful and intentional actions of Seller (such as a deeding of the Property to recover from another person), the specific performance remedy is not available to Purchaser. Also, notwithstanding anything herein to the contrary, nothing in this Section 14 shall limit Seller's obligation to pay to Purchaser the Attorneys Fees to the extent required pursuant to Section 23 in order to enforce the provisions of this Section. "Non-Breach Inaccuracy" shall mean a breach or inaccuracy of a representation or warranty contained in this Agreement of which Seller Purchaser’s reasonablegives Purchaser written notice prior to Closing or Purchaser otherwise obtains actual knowledge prior to Closing which does not constitute a breach or inaccuracy of any such representation or warranty made as of the Effective Date but would constitute a breach or inaccuracy of such representation or warranty if made as of the Closing Date (such as, out-of-pocket due diligence costs and expenses incurred for example, because Seller did not have knowledge to the extent a representation requires knowledge, as such term is defined in connection with this Agreement, including reasonable attorney’s fees (collectively, of such matters as of the “Pursuit Costs”Effective Date). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreement.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Condor Hospitality Trust, Inc.), Purchase and Sale Agreement (Condor Hospitality Trust, Inc.), Purchase and Sale Agreement (Condor Hospitality Trust, Inc.)
Seller’s Default. If Seller breaches fails to perform any of its representationsmaterial obligations under this Agreement, warranties, covenants and/or agreements hereunder or Purchaser shall provide Seller with written notice describing such default. In the event Seller fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such receipt of written notice, then Purchaser shall be entitled Purchaser, at its option to notify Seller of the election by Purchaser to and as its sole and exclusive remedy, may (i) terminate this Agreement, whereupon in which case the Escrow Agent shall deliver the Deposit to Purchaser, and Seller shall pay to Purchaser damages equal to the lesser of (A) the aggregate amount of out of pocket costs paid or incurred by Purchaser in negotiating and entering into this Agreement, performing its due diligence and audit, obtaining the New Franchise Agreement, and preparing for the Closing, or (B) one percent (1%) of the Purchase Price, and upon return of the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach payment by Seller of Seller’s obligations to convey the Property damages due to Purchaser (which Seller agrees to pay within ten (10) days after delivery of a demand notice from Purchaser accompanied by verification of its expenses paid or incurred, and if not paid when due, shall thereafter bear in accordance with interest until paid at the lesser of ten percent (10%) per annum or the maximum amount allowed by applicable law), this Agreement shall terminate, and Seller and Purchaser shall have no further rights, liabilities, or obligations under this Agreement, except those which expressly survive the termination of this Agreement; (ii) seek to specifically enforce the terms and conditions of this Agreement. In no event Agreement (in order to maintain an action for specific performance, Purchaser shall not be required to have delivered to the Title Company the remaining balance of the cash portion of the Purchase Price as long as Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been is ready, willing willing, and able to closedo so, and Purchaser shall be entitled to recover from Seller furnishes reasonable evidence of Purchaser’s reasonableability to timely perform all obligations of Purchaser); or (iii) proceed to Closing notwithstanding such default. However, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectivelynotwithstanding the foregoing, the “Pursuit Costs”limit in (i) on Purchaser’s damage remedy shall not be applicable, if through affirmative actions of Seller (such as a deeding of the Property to another person), the specific performance remedy is not available to Purchaser. For purposes Also, notwithstanding anything herein to the contrary, nothing in this Section 14 shall limit Seller’s obligation to pay to Purchaser the Attorneys Fees to the extent required pursuant to Section 23 in order to enforce the provisions of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this AgreementSection.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Condor Hospitality Trust, Inc.), Purchase and Sale Agreement (Condor Hospitality Trust, Inc.), Purchase and Sale Agreement (Condor Hospitality Trust, Inc.)
Seller’s Default. If Seller breaches fails to perform any of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, obligations under this Agreement for any Related Seller has defaulted under any of the Related Contracts, and if Purchaser reason other than Purchaser’s default or the applicable Related Purchaser has notified permitted termination of this Agreement by Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such noticePurchaser as expressly provided herein, then Purchaser shall be entitled entitled, as its sole remedy, and at its option option: (a) to notify Seller receive the return of the election by Purchaser to terminate this AgreementXxxxxxx Money from Escrow Agent, whereupon Escrow Agent and reimbursement from Seller for Purchaser’s reasonable third party due diligence costs which return and reimbursement shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect operate to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated and release Seller from any and all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required liability hereunder, Purchaser at its election shall be entitled (b) to bring suit for enforce specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller performance of Seller’s obligations obligation to execute and deliver the documents required to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that or (c) in the case event that Seller’s default is such that the remedy of a willful failure specific performance is rendered impossible, or such that the value of the Property is adversely affected, then Seller shall be obligated to close hereunder after the foregoing ten (10) day notice reimburse Purchaser for Purchaser’s reasonable third party due diligence costs which return and cure period, reimbursement shall operate to terminate this Agreement and provided that release Seller from any and all liability hereunder. Purchaser expressly waives its rights to seek damages in the absence event of such failure to close Purchaser would have been ready, willing and able to close, Seller’s default hereunder (except for the reimbursement described above). Purchaser shall be entitled deemed to recover from Seller Purchaser’s reasonable, outhave elected to terminate this Agreement and to receive a return of the Xxxxxxx Money and reimbursement of third-of-pocket party due diligence costs from Escrow Agent if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and expenses incurred state in connection with this Agreementwhich the Property is located, including reasonable attorney’s fees on or before sixty (collectively, 60) days following the “Pursuit Costs”). For purposes of this Agreement, a willful failure or date upon which Purchaser delivered written notice to Seller stating that Seller was in default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreement.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Kite Realty Group Trust), Purchase and Sale Agreement (Kite Realty Group Trust), Purchase and Sale Agreement (Kite Realty Group Trust)
Seller’s Default. If Seller breaches 9.1 Should any of its representationsVessel become an actual, warrantiesconstructive or compromised total loss (in each case, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein as so determined by the Closing DateVessel’s insurers) before it has been delivered to the Buyers in accordance with this Agreement and the relevant MOA, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any such Vessel shall be excluded from the sale of the Related Contracts, Vessels to the Buyers and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser Purchase Price shall be entitled at its option to notify Seller of reduced by the election by Purchaser to terminate this Agreement, whereupon Escrow Agent relevant Allocated Purchase Price. The Allocated Deposit for the Vessel shall return the Deposit to Purchaser and neither party will have any further obligation promptly be released to the other hereunderBuyers together with interest earned in relation to that Vessel and the relevant Acceding Buyers shall be fully and finally released by the Sellers from all of their obligations under this Agreement and the relevant MOA in relation to the relevant Vessel. Otherwise, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect this Agreement shall not be affected in any way. The Buyers shall not be entitled to terminate this Agreement because or to bring any other claim whatsoever against the Sellers for this reason (except for a breach by the Sellers of a default under a Related Contract if this Clause 9.1) and likewise the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller Sellers shall willfully fail to close as required hereunder, Purchaser at its election shall not be entitled to bring suit for specific performanceany claim against the Buyers in such a total loss situation.
9.2 Subject to the provisions of Clause 9.1, inasmuch as should the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law Sellers fail to compensate fully Purchaser for a breach by Seller give Notice of Seller’s obligations to convey the Property to Purchaser Readiness in accordance with the terms and conditions of this Agreement. In no event shall Purchaser the MOA for any Vessel, or fail to be entitled ready to monetary damages for validly complete a failure legal transfer of Seller to close hereunder, with any Vessel by 180 days after the exception that Deposit Date (at the latest) (or by 30 March 2015 in the case of “Maersk Xxxxxx”), the Buyers shall have the option of terminating the MOA for any such Vessel. If, after Notice of Readiness has been given but before the Buyers have taken delivery, the Vessel ceases to be physically ready for delivery and is not made physically ready again in every respect and a willful new Notice of Readiness given within such 180 day period (or by 30 March 2015 in the case of the “Maersk Xxxxxx”) the Buyers shall retain their option to terminate the MOA for the Vessel. The Sellers shall indemnify the Buyers in respect of any Losses (excluding Consequential Losses) arising from the withdrawal of a Notice of Readiness under this Clause 9.2.
9.3 Should the Buyers terminate the sale of a Vessel for any reason whatsoever (including but not limited to under Clause 9.2), the Allocated Deposit related to that Vessel together with interest thereon, shall be released to the Buyers immediately from the Escrow Funds and the Sellers shall make due compensation to the Buyers for their Loss and for all expenses together with interest if their failure is due to proven negligence. As a separate continuing obligation, the Sellers indemnify and agree to indemnify the Buyers from and against any and all Losses which the Buyers may suffer or incur as a consequence of the failure of Seller the Sellers fully to close hereunder after the foregoing ten (10) day notice perform all of its respective obligations under each MOA. Otherwise, this Agreement shall remain in full force and cure periodeffect, and provided that the Parties’ rights and obligations under this Agreement in relation to the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser other Vessels shall not be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred affected in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreementany way.
Appears in 3 contracts
Samples: Framework Agreement (Euronav NV), Framework Agreement (Euronav NV), Framework Agreement (Euronav NV)
Seller’s Default. If Seller breaches any In the event thatShould the Sellers (i) fail to give Notice of its representations, warranties, covenants and/or agreements hereunder Readiness in accordance with Clause 5 a) or fails (ii) fail to consummate be ready to validly complete a legal transfer of the purchase and sale contemplated herein Vessel on or before by the Closing Datedate stipulated in line 61, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any (ii) the Sellers shall otherwise default in the delivery of the Related Contracts, and if Purchaser or Vessel according to the applicable Related Purchaser has notified Seller or such Related Seller terms of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent the Buyers shall return have the Deposit right in their option to Purchaser and neither party will have any further obligation to the other hereundercancel of cancelling this Agreement, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate in which case this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as null and void and the parties recognize Sellers shall compensate the Buyers all reasonable and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence properly documented costs and expenses incurred by the Buyers arising out of or in connection with this Agreement, including reasonable attorney’s fees (collectively. provided always that the Sellers shall be granted a maximum of 3 banking days after Notice of Readiness has been given to make arrangements for the documentation set out in Clause 8. If after Notice of Readiness has been given but before the Buyers have taken delivery, the “Pursuit Costs”)Vessel ceases to be physically ready for delivery and is not made physically ready again in every respect by the date stipulated in line 61 and new Notice of Readiness given, the Buyers shall retain their option to cancel. For purposes In the event that the Buyers elect to cancel this Agreement the deposit together with interest earned shall be released to them immediately. Should the Sellers fail to give Notice of this Agreement, Readiness by the date stipulated in line 61 or fail to be ready to validly complete a willful legal transfer as aforesaid they shall make due compensation to the Buyers for their loss and for all expenses together with interest if their failure is due to proven negligence and whether or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive not the expiration or earlier termination of Buyers cancel this Agreement.
Appears in 2 contracts
Samples: Memorandum of Agreement for Sale and Purchase of Ships (DryShips Inc.), Memorandum of Agreement for Sale and Purchase of Ships (DryShips Inc.)
Seller’s Default. A. If the closing of the Property is consummated, then the following shall apply: the representations and warranties of Seller set forth in Section 5will survive the Closing for a period of nine (9) months. Purchaser will not have any right to bring any action against Seller as a result of any untruth or inaccuracy of such representations and warranties, unless and until the aggregate amount of all liability and losses arising out of any such untruth or inaccuracy, exceeds $25,000.00, and then only to the extent of such excess. In addition, in no event will Seller's liability for all such breaches exceed, in the aggregate, $500,000.00. Seller shall have no liability with respect to any of its Seller's representations, warrantieswarranties and covenants herein if, covenants and/or agreements hereunder or fails prior to consummate the purchase and sale contemplated herein by the Closing Date, Purchaser has actual knowledge of any breach of a representation, warranty or ifcovenant of Seller herein, pursuant to Section 5.2 aboveor Purchaser obtains actual knowledge (from whatever source, including, without limitation, any Related tenant estoppel certificates, as a result of Purchaser's due diligence or written disclosure by Seller has defaulted under or Seller's agents and employees) that contradicts any of the Related ContractsSeller's representations and warranties herein, and if Purchaser nevertheless consummates the transaction contemplated by this Agreement.
B. If the closing of the Property is not consummated due to Seller's failure or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed refusal to cure such default within ten (10) days of such noticeperform its obligations under this Contract, then Purchaser shall be entitled at entitled, as its option to notify Seller sole remedy in respect of the election by Purchaser such default, either (a) to terminate this Agreement, whereupon Escrow Agent shall Contract and to receive the return of the Deposit and Seller shall reimburse Purchaser its reasonable out of pocket expenses incurred or arising pursuant to this Contract up to a maximum of Fifty Thousand and 00/100 Dollars ($50,000.00), or (b) to enforce specific performance of this Agreement. Purchaser and neither party will shall be deemed to have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect elected to terminate this Agreement because of a default under a Related Contract and receive back the Deposit, if the respective Related Purchasers have also terminated all the Related Contracts due Purchaser fails to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring file suit for specific performanceperformance against Seller in a local or federal court with jurisdiction over the parties, inasmuch as on or before thirty (30) days following the parties recognize and acknowledge earlier to occur of: (i) the date upon which closing was to have occurred or (ii) the date that either party terminates this Agreement in writing.
C. Notwithstanding anything herein to the contrary, if (i) the closing of the Property is unique, not consummated due to Seller's failure or refusal to perform its obligations under this Contract (and that there is no adequate remedy at law to compensate fully Purchaser for a breach not excused by Seller reason of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control refusal to prevent. This Section 11.2 shall fully survive perform its obligations under the expiration or earlier termination of this Agreement.Contract), and
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement
Seller’s Default. If Seller breaches any of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any (a) Each of the Related Contracts, following shall constitute an act of default by Seller under this Contract (a “Seller Default”):
(i) The failure of Seller to manufacture the Equipment with such diligence and if Purchaser or in such manner as required by this Contract and the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed Specification and/or the Standards as will enable it to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller complete the delivery of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser Units in accordance with the terms Scheduled Delivery Dates, except and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages the extent that such failure is due to one or more Excusable Delays, which default continues un-remedied for a period of thirty (30) days after written notice to Seller thereof;
(ii) If due to the failure of Seller to close hereunderperform its obligations hereunder the Units of Equipment scheduled for delivery in any month pursuant to the Scheduled Delivery Dates have not been delivered within sixty (60) days after the end of the month;
(iii) Seller fails to repair or replace a Warranty Defect as provided in ARTICLE 13;
(iv) Any other material default by Seller to perform or satisfy its obligations and conditions under this Contract, with the exception that which default continues un-remedied for a period of thirty (30) days after written notice to Seller thereof;
(v) Any breach of any warranty by Seller; or
(vi) Seller or any affiliate involved in the case manufacturing of the Equipment (“Key Affiliate”) is dissolved or makes a willful general assignment for the benefit of its creditors; a receiver or custodian of any kind whatsoever is appointed, whether or not appointed in bankruptcy, common law or equity proceedings, whether temporary or permanent, for a substantial portion of the property of Seller or a Key Affiliate; Seller or a Key Affiliate files a petition for relief under any chapter of the U.S. Bankruptcy Code or similar law; a petition for relief is filed against Seller or a Key Affiliate and such petition is not dismissed by the court within sixty (60) days after the date on which such petition was filed; the admission by Seller or a Key Affiliate in writing of its inability to pay debts generally as they become due; the failure of Seller or a Key Affiliate generally to close hereunder pay its debts as they become due; or if Seller fails to assume this Contract within thirty (30) days after the foregoing ten (10) day notice and cure period, and provided that in filing of a petition by or against Seller under the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure U.S. Bankruptcy Code or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreementsimilar law.
Appears in 2 contracts
Samples: Equipment Purchase Contract (Hub Group Inc), Equipment Purchase Contract (Hub Group Inc)
Seller’s Default. If Seller breaches any defaults in its obligation to sell and/or lease the Property in accordance with the terms of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related Contractsthis Agreement, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default is not cured within ten (10) days of such noticefrom written notice thereof from Purchaser to Seller, then Purchaser may, as its sole and exclusive remedy at law or in equity: (a) terminate this Agreement by giving written notice thereof to Seller, in which event the Deposit will promptly be returned to Purchaser, Seller promptly shall reimburse Purchaser for the third party costs which shall be entitled at its option defined as legal, engineering, survey, environmental and title fees as evidenced by copies of all bills relating to notify Seller of expenses incurred that Purchaser has incurred in connection with this Agreement and the election by Purchaser to terminate this Agreementtransactions contemplated hereby, whereupon Escrow Agent and the parties shall return the Deposit to Purchaser and neither party will have any no further obligation to each other; (b) waive such default and consummate the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser transactions contemplated hereby in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten ; or (10c) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with specifically enforce this Agreement. Purchaser hereby irrevocably waives any other right or remedy for such default; provided, including reasonable attorney’s fees (collectivelyhowever, the “Pursuit Costs”). For purposes that if, in breach of this Agreement, Seller sells the Property (or any portion thereof) to someone other than Purchaser or otherwise takes action that renders the remedy of specific performance impossible or impractical to obtain, Seller shall be liable for any damages suffered by Purchaser as a willful result of such breach. If Purchaser brings an action for specific performance, the Deposit shall be returned to Purchaser pending the outcome of such action. As a condition precedent to Purchaser exercising any right it may have to bring an action for specific performance hereunder, Purchaser must commence such an action within ninety (90) days after the Closing Date (as the same may be extended in accordance with the terms hereof). Purchaser agrees that its failure to timely commence such an action for specific performance within such ninety (90) 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 default record a notice of Seller is a failure lis pendens or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive notice of pendency of action or similar notice against all or any portion of the expiration or earlier termination of this AgreementProperty.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Parlex Corp), Purchase and Sale Agreement (Parlex Corp)
Seller’s Default. If Seller breaches shall default in the performance of any of its representations, warranties, covenants and/or agreements hereunder or fails obligations to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted be performed under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively(including, in the event Seller shall willfully fail to close as required hereunderwithout limitation, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to any representation, warranty or covenant set forth herein) and Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been is otherwise ready, willing and able to closeperform its obligations to be performed on the then-scheduled Closing Date, Purchaser’s sole remedies hereunder shall be to: (a) terminate this Agreement on no less than five (5) days’ prior written notice to Seller (during which period Seller shall have the opportunity to cure any such default) and, upon the effective date of such termination, (i) the Deposit shall be returned to the Purchaser, (ii) the Lease shall continue in full force and effect, and (iii) Seller shall reimburse Purchaser for Purchaser’s Costs (as defined below); or (b) Purchaser may seek specific performance of Seller’s obligations hereunder, in which case (i) if the Closing occurs, Seller shall reimburse Purchaser for the costs incurred by Purchaser in seeking specific performance and Purchaser shall retain the ability to make claims for indemnification pursuant to Article XIV below, or (ii) if the Closing does not occur within sixty (60) days after bringing an action for specific performance, Purchaser may terminate this Agreement by delivery of written notice to Seller and, upon such termination, (A) the Deposit shall be entitled returned to recover from the Purchaser, (B) the Lease shall continue in full force and effect, and (C) Seller shall reimburse Purchaser for Purchaser’s reasonableCosts. As used herein, out“Purchaser’s Costs” means all of the expenses actually incurred by Purchaser for: (x) title examination, survey, and municipal searches, including the issuance of the Title Commitment and any continuation thereof, without issuance of a title insurance policy; (y) fees paid to Purchaser’s engineer for preparing any environmental and engineering reports with respect to the Property (if applicable); and (z) the actual and reasonable third-of-pocket due diligence party costs and expenses incurred by Purchaser in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes negotiation of this Agreement, Purchaser’s due diligence with respect to the Property, or Purchaser’s proposed acquisition financing, including, without limitation, reasonable attorneys’ fees and commitment fees, but not to exceed a willful failure or default total of Seller is a failure or default which was within Seller’s knowledge $50,000.00 for all items included in sub-clauses (x), (y) and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreement(z) above.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Krystal Biotech, Inc.), Purchase and Sale Agreement (Krystal Biotech, Inc.)
Seller’s Default. If Seller breaches any of defaults in its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey sell the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing and if such default is not cured within ten (10) day days from written notice and cure period, and provided that thereof from Purchaser to Seller (except such notice shall not be required where all conditions precedent to Seller’s obligations under this Agreement as set forth in the absence of such failure to close Purchaser would Section 6.2 have been readysatisfied and Seller fails to provide the Seller’s Deliveries as set forth in Section 8.2), willing then Purchaser may, as its sole and able exclusive remedy at law or in equity: (a) terminate this Agreement in its entirety by giving written notice thereof to closeSeller, in which event the Deposit will promptly be returned to Purchaser and the parties shall be entitled have no further obligation to recover from each other except any obligations hereunder that expressly survive any such termination; (b) terminate this Agreement solely with respect to the Property to which such default relates by giving written notice thereof to Seller, in which event the parties shall have no further obligation to each other with respect to such Property except any obligations hereunder that expressly survive any such termination; (c) waive such default and consummate the transactions contemplated hereby in accordance with the terms of this Agreement; or (d) specifically enforce this Agreement. Purchaser hereby irrevocably waives any other right or remedy for such default; provided, however, that if, in breach of this Agreement, Seller Purchaser’s reasonablesells the Property (or any portion thereof) to someone other than Purchaser or otherwise takes action that renders the remedy of specific performance impossible or impractical to obtain, outSeller shall reimburse Purchaser for the actual third-party out of-pocket due diligence costs and expenses incurred by Purchaser in connection with this AgreementAgreement and the transaction contemplated hereby, including reasonable attorney’s fees (collectivelyin an amount not to exceed $100,000.00. If Purchaser brings an action for specific performance, the “Pursuit Costs”). For purposes Deposit shall remain in escrow pending the outcome of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreementsuch action.
Appears in 2 contracts
Samples: Real Estate Purchase and Sale Agreement, Real Estate Purchase and Sale Agreement (Excelsior Lasalle Property Fund Inc)
Seller’s Default. If (a) Seller breaches any shall be in default of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted obligations under this Agreement if any of the Related Contractsfollowing events occurs:
(i) The failure of the Seller to perform or breach of any of the covenants, agreements, or undertakings on its part to be performed under this Agreement, provided that the Buyer shall give notice to the Seller as to such failure and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default Buyer shall not, within thirty (30) days after being so notified, commence and Seller or such Related Seller has failed diligently prosecute remedial action to cure such default failure to perform or breach which shall in any event be cured within ten ninety (1090) days of the date of such noticenotice from Buyer;
(ii) Seller goes into liquidation, then Purchaser shall be entitled whether voluntary or compulsory, or enters into a scheme of arrangement, or makes a general assignment of its assets for the benefit of its creditors, or a receiver or receivers of any kind whatsoever, whether temporary or permanent, is appointed for the property of Seller, or Seller institutes proceedings for its reorganization or the institution of such proceedings by creditors and approval thereof by the court, whether proposed by a creditor, a stockholder or any other person whomsoever, or Seller suffers any execution against a major portion of its assets which is not satisfied within seven (7) days, or Seller fails generally, or admits in writing its inability, to pay its debts generally as they become due.
(b) If any default by Seller occurs as defined in Subparagraph (a) of this Paragraph 17(A), Buyer, at its option election, may upon prompt notice to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated without prejudice and exercise all the Related Contracts due rights and remedies available to such default). AlternativelyBuyer at law, in admiralty, or in equity. Prior to exercise of any remedy involving or which includes ant attempt to take control or possession of the event Platform or any components thereof or work in progress, directly or through judicial process, if Seller disputes that it is in default, Buyer shall willfully fail first be required to close as required hereunder, Purchaser at its election post with Seller a corporate surety bond from a first class U.S. Surety acceptable to Seller in a form reasonable satisfactory to Seller. Such bond shall be entitled in an amount equal to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach 150% of any sum claimed by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of under this Agreement.
Appears in 2 contracts
Samples: Platform Construction Agreement (Chiles Magellan LLC), Platform Construction Agreement (Chiles Offshore LLC)
Seller’s Default. If In the event that Seller breaches shall have failed in any material respect adverse to Buyer as of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant Date to Section 5.2 above, any Related Seller has defaulted under have performed any of the Related Contracts, covenants and if Purchaser agreements contained in this Agreement which are to be performed by Seller on or before the applicable Related Purchaser has notified Closing Date or Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at defaults in its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other close hereunder, other than Buyer shall have the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect right to terminate this Agreement because of and receive (a) the Escrowed Amount and (b) reimbursement for actual costs incurred by Buyer in conducting its due diligence pursuant to this Agreement in a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due total amount not to such default)exceed $35,000.00, whereupon this Agreement shall terminate without further recourse. AlternativelyBuyer hereby waives and relinquishes any right to sue Seller for any reason whatsoever, in the event and agrees that Seller shall willfully fail nxx be liable to close as required hereunderBuyer for any actual, Purchaser at its election shall be entitled to bring suit punitive, speculative, consequential or other damages for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller prior to the Closing, except for payment of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this AgreementEscrowed Amount. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunderIN NO EVENT SHALL SELLER, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure periodITS DIRECT OR INDIRECT PARTNERS, and provided that in the absence of such failure to close Purchaser would have been readySHAREHOLDERS, willing and able to closeOWNERS OR AFFILIATES, Purchaser shall be entitled to recover from Seller Purchaser’s reasonableANY OFFICER, out-of-pocket due diligence costs and expenses incurred in connection with this AgreementDIRECTOR, including reasonable attorney’s fees (collectivelyEMPLOYEE OR AGENT OF THE FOREGOING, the “Pursuit Costs”). For purposes of this AgreementOR ANY AFFILIATE OR CONTROLLING PERSON THEREOF, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this AgreementHAVE ANY LIABILITY BEYOND ITS INTEREST IN THE PROPERTY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON COMMON LAW, CONTRACT, STATUTE, EQUITY OR OTHERWISE.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Cornerstone Realty Income Trust Inc), Purchase and Sale Agreement (Apple Residential Income Trust Inc)
Seller’s Default. If If, for any reason whatsoever other than upon Seller’s willful default, Seller breaches any of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations unable to convey the title to a Property to Purchaser subject to, and in accordance with with, the terms and conditions of this AgreementContract, Purchaser may elect to obtain a refund of the Deposit. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with Upon the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence making of such failure refund to close Purchaser would have been readyPurchaser, willing and able to close, Purchaser this Contract shall be entitled null and void and of no further force or effect, except for those provisions expressly stated to recover from survive the termination of this Contract and the lien, if any, of Purchaser against the Premises shall wholly cease. Seller’s “willful default” will include any breach of an obligation that Seller has undertaken under this Contract which is in Seller’s reasonable control with respect to which (i) Seller has not undertaken reasonable and good faith efforts to comply or (ii) which a court of competent jurisdiction shall determine is a “willful default”. Seller “reasonable and good faith efforts” shall not include litigation or the obligation to incur any cost or liability or spend any sums, except as may be expressly required by other provisions of this Contract. Purchaser’s reasonable, sole remedy for Seller’s willful default as to the Property shall be to elect to cancel this Contract as to that Property and receive from the Seller reimbursement of the Deposit (plus actual out-of-pocket due diligence costs third party costs, including attorneys’ fees and expenses costs, incurred by Purchaser after the Effective Date in connection with this AgreementPurchaser’s inspections and other due diligence; provided, however, that Seller’s liability for such costs shall not exceed $25,000 in the aggregate), or to commence an action for specific performance within sixty (60) days after the alleged default by Seller. Purchaser hereby waives all other rights and remedies that it might have, including reasonable attorneythe right to xxx for damages, except with respect to Seller’s fees (collectively, the “Pursuit Costs”). For purposes willful default of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this AgreementContract.
Appears in 2 contracts
Samples: Contract of Sale (US Federal Properties Trust Inc.), Contract of Sale (US Federal Properties Trust Inc.)
Seller’s Default. 15.1 If Buyer has evidence of Seller’s inability to deliver in accordance with the Purchase Order, or if Seller fails promptly to correct any defect or deficiency in the equipment, or if Seller, in Buyer’s reasonable opinion, is not making sufficient progress to ensure completion by the delivery date stated in the Purchase Order (or, if such date has passed); or, if Seller has refused to carry out the reasonable instructions of Buyer; or if Seller has breached any provision of the Purchase Order, then Buyer may give Seller written notice of default. If Seller breaches any has not made good the default (or taken all reasonable steps towards making good the default) within five (5) working days following the date of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller issue of such default and Seller or such Related Seller has failed to cure such default within ten (10) days written notice of such noticedefault, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election Buyer shall be entitled to bring suit for specific performanceterminate the Purchase Order in whole or in part.
15.2 If Buyer terminates the Purchase Order, inasmuch as the parties recognize and acknowledge that the Property is uniquein whole or in part, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser Buyer shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, obtain the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default equipment which was within to be supplied under the terminated portion of the Purchase Order from any other source. Seller shall be liable for all costs incurred by Buyer in procuring such substitute equipment which are in excess of what would have been the cost to Buyer if such equipment had been supplied under the Purchase Order.
15.3 If Buyer exercises any right to terminate the Purchase Order (in whole or part) as set forth in the Purchase Order or as otherwise available to Buyer, Buyer shall be entitled to enter Seller’s knowledge premises and, notwithstanding any lien, to take possession of and reasonable control remove therefrom all equipment, whether complete or not, which has become the property of Buyer pursuant to preventthe Purchase Order. This Section 11.2 The cost to Buyer of so doing shall fully survive at Buyer’s option be repaid to Buyer by Seller or shall be deducted from any money due from Buyer to Seller under the expiration or earlier termination of this AgreementPurchase Order.
Appears in 2 contracts
Samples: Purchase Order Terms and Conditions, Purchase Order Terms and Conditions
Seller’s Default. If (a) Seller breaches any shall be in default of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted obligations under this Agreement if any of the Related Contractsfollowing events occurs:
(i) The failure of the Seller to perform or breach of any of the covenants, agreements, or undertakings on its part to be performed under this Agreement, provided that the Buyer shall give notice to the Seller as to such failure and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default Buyer shall not, within thirty (30) days after being so notified, commence and Seller or such Related Seller has failed diligently prosecute remedial action to cure such default failure to perform or breach which shall in any event be cured within ten ninety (1090) days of the date of such noticenotice from Buyer;
(ii) Seller goes into liquidation, then Purchaser shall be entitled whether voluntary or compulsory, or enters into a scheme of arrangement, or makes a general assignment of its assets for the benefit of its creditors, or a receiver or receivers of any kind whatsoever, whether temporary or permanent, is appointed for the property of Seller, or Seller institutes proceedings for its reorganization or the institution of such proceedings by creditors and approval thereof by the court, whether proposed by a creditor, a stockholder or any other person whomsoever, or Seller suffers any execution against a major portion of its assets which is not satisfied within seven (7) days, or Seller fails generally, or admits in writing its inability, to pay its debts generally as they become due.
(b) If any default by Seller occurs as defined in Subparagraph (a) of this Paragraph 1 7(A), Buyer, at its option election, may upon prompt notice to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated without prejudice and exercise all the Related Contracts due rights and remedies available to such default). AlternativelyBuyer at law, in admiralty, or in equity. Prior to exercise of any remedy involving or which includes and attempt to take control or possession of the event Platform or any components thereof or work in progress, directly or through judicial process, if Seller disputes that it is in default, Buyer shall willfully fail first be required to close as required hereunder, Purchaser at its election post with Seller a corporate surety bond from a first class U.S. surety acceptable to Seller in a form reasonable satisfactory to Seller. Such bond shall be entitled in an amount equal to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach 150% of any sum claimed by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of under this Agreement.
Appears in 2 contracts
Samples: Platform Construction Agreement (Chiles Magellan LLC), Platform Construction Agreement (Chiles Offshore LLC)
Seller’s Default. If Seller breaches shall (i) default in the performance of any of its representationsSeller’s material obligations to be performed under this Agreement in any material respect or (ii) breach any material covenant, warrantiesagreement, covenants and/or agreements hereunder representation or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, warranty contained in this Agreement in any Related Seller has defaulted under any of the Related Contractsmaterial respect, and if Purchaser or the applicable Related Purchaser Buyer has notified Seller of the default or such Related Seller breach, the same has continued without cure for a period of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such noticethereafter, then Purchaser and the Closing does not occur as a result thereof (provided that the Closing Date shall be entitled at its option extended as reasonably necessary to notify afford Seller such cure period), Buyer’s sole and exclusive remedy shall be to either: (x) terminate this Agreement by delivery of written notice to Seller and Escrow Agent, and Escrow Agent or Seller, as applicable, shall return the election by Purchaser First Xxxxxxx Money Deposit and the Xxxxxxx Money Deposit to Buyer, with the interest earned thereon, if any, whereupon this Agreement shall terminate and neither Party shall have any further rights or obligations with respect to each other or this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (except those that are expressly provided Purchaser may only elect to terminate in this Agreement because of a default under a Related Contract if to survive the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for termination hereof; or (y) continue this Agreement and seek specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller performance of Seller’s obligations hereunder, and if Buyer prevails thereunder, Seller shall reimburse Buyer for all reasonable attorneys’ fees actually incurred, court costs, and all other reasonable costs of such action. Notwithstanding the foregoing, if Seller shall willfully default in its obligation to convey close the Property transaction hereunder on the Closing Date and specific performance shall not be a legally available remedy to Purchaser Buyer as a result thereof, then Buyer shall: (x) have the right to receive a return of the First Xxxxxxx Money Deposit and the Xxxxxxx Money Deposit; and (y) be entitled to (and Seller shall reimburse Buyer for) Buyer’s actual costs (collectively, “Buyer’s Costs”) of (w) title examination, survey and municipal searches, including the issuance of Buyer’s Title Report and any continuation thereof, without issuance of a title insurance policy; (x) fees paid to Xxxxx’s engineer for preparing any environmental and engineering reports with respect to the Property; (y) the actual and reasonable third- party costs incurred by Buyer in accordance connection with the terms negotiation of this Agreement and conditions Buyer’s due diligence with respect to the Property, and (z) reasonable, actual attorneys’ fees, court costs, and all other reasonable costs of any action brought by Buyer to enforce the provisions hereof, not to exceed in total Fifty Thousand and 00/100 Dollars ($50,000.00). Seller’s reimbursement obligations shall survive the termination of this Agreement. In no event shall Purchaser any circumstance under this Agreement in which the Xxxxxxx Money Deposit is to be entitled paid to monetary damages for a failure any Party or otherwise disbursed hereunder or refunded to Buyer, said payment, disbursement or refund of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser Xxxxxxx Money Deposit by Escrow Agent shall be entitled subject to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes provisions of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this AgreementARTICLE IV herein.
Appears in 2 contracts
Seller’s Default. The liability of each Seller under this Agreement shall be joint and several. If any Seller breaches fails to perform any of its representationsobligations or is otherwise in default hereunder, warranties, covenants and/or agreements hereunder breaches a representation or fails to consummate the purchase and sale contemplated herein by the Closing Datewarranty, or if, willfully causes the failure of a condition precedent pursuant to Section 5.2 above5.4 hereof (as applicable, a “Seller Default), Buyer shall have the right to elect, in its sole and absolute discretion to:
6.2.1 Waive such failure and proceed to the Closing with no reduction in the Purchase Price; provided, however, that this provision will not limit Buyer’s right to receive reimbursement for attorney’s fees pursuant to Section 9.8 below in connection with any Related Seller has defaulted under any legal proceedings instituted by either party or Escrow Agent with respect to the enforcement of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the nor waive or affect Seller’s indemnity obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due or Buyer’s rights to such default). Alternativelyenforce those indemnity obligations, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller nor waive or affect any of Seller’s other obligations under this Agreement to be performed after the Closing or Buyer’s rights to enforce those obligations;
6.2.2 Commence an action for specific performance to cause Seller to convey the Property to Purchaser in accordance with Buyer pursuant to the terms and conditions of this Agreement. In no ; provided, however, in the event shall Purchaser be entitled the remedy of specific performance is not available as a remedy, Buyer may recover the full amount of the Deposit and seek reimbursement from Seller of Buyer’s actually incurred, out of pocket costs in conjunction with the Agreement, not to monetary damages for a failure of exceed $350,000.00; or
6.2.3 Terminate this Agreement in its entirety by notice to Seller to close that effect, in which event the parties hereto shall have no further obligations hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten except those which survive termination hereof (10) day notice and cure period, and provided that in the absence of such failure this provision will not limit Buyer’s right to close Purchaser would have been ready, willing and able receive reimbursement for attorney’s fees pursuant to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred Section 9.8 below in connection with this Agreement, including reasonable attorney’s fees (collectively, any legal proceedings instituted by either party or Escrow Agent with respect to the “Pursuit Costs”). For purposes enforcement of this Agreement, a willful failure nor waive or default of Seller is a failure or default which was within affect Seller’s knowledge indemnity obligations under this Agreement or Buyer’s rights to enforce those indemnity obligations), and reasonable control to preventrecover the full amount of the Deposit. For the avoidance of doubt, in the event of a Seller Default, the reimbursement obligation contained in Section 6.2.2 shall survive any termination of this Agreement.
6.2.4 Notwithstanding anything to the contrary contained in this Agreement, Buyer shall not be required to fund the balance of the Purchase Price in order to enforce any of its remedies under this Agreement. This Section 11.2 6.2 shall fully survive the expiration Closing or earlier termination of this Agreement.
Appears in 2 contracts
Samples: Real Estate Purchase Agreement (Griffin-American Healthcare REIT III, Inc.), Real Estate Purchase Agreement (Griffin-American Healthcare REIT III, Inc.)
Seller’s Default. If any Seller breaches any of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein perform its obligations pursuant to this Agreement for any reason except failure by the Closing DateBuyer to perform hereunder, or if, pursuant if prior to Section 5.2 above, Closing any Related Seller has defaulted under one or more of any of the Related ContractsSeller's representations or warranties are breached in any material respect, and if Purchaser any such failure or the applicable Related Purchaser has notified breach is not cured by such Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days after receipt of written notice from Buyer specifying the nature of any such failure and/or breach, Buyer shall elect, as its sole remedy, either to (a) terminate this Agreement (or, in the event such failure to perform or breach relates to one or more specific Properties, terminate Buyer's obligation to purchase such Property(ies)) by giving Sellers timely written notice of such noticeelection prior to or at Closing and recover the Deposit applicable to such Property, then Purchaser (b) enforce specific performance, or (c) waive said failure and/or breach and proceed to Closing. Notwithstanding anything herein to the contrary, Buyer shall be entitled at its option deemed to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect elected to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, (or in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been readyperform or breach relates to one or more specific Properties, willing terminate Buyer's obligation to purchase such Property(ies)) if Buyer fails to either waive such failure and/or breach and able proceed to closeClosing or to deliver to Sellers written notice of its intent to file a claim or assert a cause of action for specific performance against Sellers on or before twenty (20) business days following the scheduled Closing Date or, Purchaser shall be entitled having given such notice, fails to recover from Seller Purchaser’s reasonablefile a lawsuit asserting such claim or cause of action in the county in which the Property which is the subject of such breach is located within nine (9) months following the scheduled Closing Date. EXCEPT AS SET FORTH IN THE JOINDER HERETO EXECUTED BY ESSEX APARTMENT VALUE FUND, out-of-pocket due diligence costs and expenses incurred in connection with this AgreementL.P., including reasonable attorney’s fees (collectivelyA DELAWARE LIMITED PARTNERSHIP, the “Pursuit Costs”). For purposes of this AgreementIN NO EVENT SHALL ANY OF SELLER'S DIRECT OR INDIRECT PARTNERS, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this AgreementCONSTITUENT ENTITIES, SUBSIDIARIES AND/OR AFFILIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, REPRESENTATIVES OR AGENTS HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE,.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Essex Property Trust Inc), Purchase and Sale Agreement (United Dominion Realty Trust Inc)
Seller’s Default. If Seller breaches any Purchaser shall have performed or tendered performance of all of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted material obligations under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return and the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement sale contemplated hereby is not consummated because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due by Seller in its obligation to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that sell the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to closethen, Purchaser shall may, as its sole and exclusive remedy at law or in equity: (a) terminate this Agreement by giving written notice thereof to Seller, in which event the Deposit will be entitled returned to recover from Seller Purchaser promptly following Purchaser’s reasonablecompliance with its obligations under Section 5.3(c), in which event Seller shall reimburse Purchaser for all of its reasonable out-of-pocket due diligence costs and expenses (not to exceed $75,000.00) incurred in connection with this Agreementits inspection of the Property, including review of Documents and Property Information, and any other pre-development activities related to the Property, including, without limitation, its reasonable attorneyattorney fees, and, after the return to Purchaser of the Deposit and the reimbursement of the foregoing expenses, neither Seller nor Purchaser will have any further duties or obligations to the other hereunder except for Purchaser’s fees Surviving Obligations; (collectively, b) waive such default and consummate the “Pursuit Costs”). For purposes transactions contemplated hereby in accordance with the terms of this Agreement, ; or (c) specifically enforce this Agreement. Purchaser hereby irrevocably waives any other right or remedy for such default. As a willful failure or default condition precedent to Purchaser exercising any right to bring an action for specific performance as the result of Seller is a failure or default which was within Seller’s knowledge and reasonable control default hereunder, Purchaser must commence such action within sixty (60) days after the occurrence of such default. Purchaser agrees that its failure timely to prevent. This Section 11.2 commence such an action for specific performance within such sixty (60) day period shall fully survive the expiration or earlier termination be deemed a waiver by it of this Agreementits right to commence such an action.
Appears in 2 contracts
Samples: Real Estate Purchase and Sale Agreement, Real Estate Purchase and Sale Agreement (Lexicon Pharmaceuticals, Inc./De)
Seller’s Default. If Seller breaches any of its Sellers, prior to the Closing, default in their representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted obligations under any of the Related Contractsthis Agreement, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within continues for more than ten (10) days of such noticeBusiness Days after written notice from Buyers (other than a failure to close on the scheduled Closing Date for which there shall be no cure period), then Purchaser shall be entitled Buyers, at its option Buyers’ election and as their sole and exclusive remedy, may elect to notify Seller (a) seek specific performance of Sellers’ obligation to consummate the election by Purchaser transactions for Closing pursuant to terminate this Agreement; (b) if the default has a Portfolio MAE, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract with respect to all remaining Properties, or if the respective Related Purchasers have also default has an Individual MAE, terminate this Agreement with respect to any Property with respect to which a Seller default exists (each such terminated all the Related Contracts due Property, a “Default Excluded Property”), whereupon (i) Buyers shall proceed to such default). Alternatively, in the event Seller shall willfully fail Closing (subject to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled ) with respect to monetary damages for a failure of Seller to close hereunderthe remaining Properties (if any), with (ii) the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser Purchase Price shall be entitled reduced according to recover from Seller Purchaser’s reasonablethe Allocated Purchase Price for each Default Excluded Property, (iii) if all remaining Properties were terminated, the remaining Deposit shall be returned to Buyers, or if less than all remaining Properties were terminated, a portion of the Deposit equal to the product of (x) $40,000,000 and (y) (the Allocated Purchase Price of the Default Excluded Property(ies) divided by $1,320,000,000) shall be returned to Buyers, (iv) Sellers shall reimburse Buyers for their actual, documented out-of-pocket due diligence costs and expenses incurred in connection with this AgreementAgreement not to exceed the applicable Default Excluded Property Reimbursement Cap (such obligation of Sellers to survive such partial termination), including reasonable attorney’s fees and (collectivelyv) Buyers and the applicable Seller shall have no further rights, the “Pursuit Costs”). For purposes of obligations, or remedies under this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control Agreement with respect to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreement.each such Default Excluded Property (except as
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Sila Realty Trust, Inc.), Purchase and Sale Agreement (Sila Realty Trust, Inc.)
Seller’s Default. If Seller breaches any defaults under this Contract and such default continues uncured for a period of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related five (5) business days after Purchaser gives Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller written notice of such default or, if sooner, until Closing (but no such notice and Seller or such Related Seller has failed opportunity to cure such default within ten (10) days shall be required for breach of such noticeSeller obligations due to be performed at Closing and the same shall immediately allow Purchaser’s remedies), then Seller shall be in material breach and Purchaser shall be entitled at entitled, as Purchaser’s sole and exclusive remedies, to either (a) terminate this Contract upon written notice to Seller and to request the Title Company to return the Xxxxxxx Money Deposit, together with all accrued interest thereon, to Purchaser, or (b) pursue an action to enforce specific performance of Seller’s obligations under this Contract. If for any reason Seller fails, neglects, refuses or otherwise defaults in the performance of any covenant contained in this Contract, Purchaser may, as its option to notify Seller of the election by Purchaser sole and exclusive remedies, either (i) elect in writing to terminate this Agreement, Contract whereupon Escrow Agent shall return the Xxxxxxx Money Deposit to Purchaser and neither party Seller will have refund any portion of the Xxxxxxx Money Deposit disbursed to Seller by Escrow Agent, if applicable, and the parties shall be relieved of all further obligation to the other obligations hereunder, other than the obligations except those which expressly survive termination of the Purchaser under Section 4.1 this Contract; or (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for ii) seek specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller performance of Seller’s obligations hereunder. Notwithstanding the foregoing, if Purchaser’s remedy of specific performance is not available to convey Purchaser because of Seller conveying or mortgaging the Property to Purchaser in accordance with a third party prior to the terms and conditions Closing Date, then upon Purchaser’s termination of this Agreement. In no event shall Purchaser be entitled Contract pursuant to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten clause (10i) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, hereof Purchaser shall be entitled to recover liquidated damages from Seller Purchaser’s reasonablein an amount equal to Net Consideration received by the Seller for wrongful sale of the Property or wrongful mortgage of the Property to such third party. The term “Net Consideration” shall mean the positive difference of (A) the purchase price or mortgaged proceeds actually received by Seller for the sale of the Property to a third party prior to the Closing Date net of any and all closing expenses incurred by Seller in connection with the sale, out-of-pocket due diligence less (B) the Purchase Price plus all costs and expenses that Purchaser would reasonably be projected to have incurred in connection with acquiring the Property. The amount of the Xxxxxxx Money Deposit so refunded under this Agreement, including reasonable attorney’s fees (collectively, Section 8 shall not act as an offset to any damages actually suffered by the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Purchaser due to Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of default under this AgreementContract.
Appears in 2 contracts
Samples: Purchase Agreement (Carter Validus Mission Critical REIT II, Inc.), Purchase Agreement (Carter Validus Mission Critical REIT II, Inc.)
Seller’s Default. If Seller breaches any of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any In recognition of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge fact that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser damages for a breach by Sellers under this Agreement and/or by Xxxxxx Petroleum under the LGO Asset Purchase Agreement (each a “Seller Default”) may be difficult to determine, if a material Seller Default occurs prior to Closing, Purchaser shall give Sellers and Xxxxxx Petroleum written notice of Seller’s obligations to convey the Property to Purchaser in accordance with the terms such Seller Default and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that if Sellers (in the case of a willful failure of Seller to close hereunder after the foregoing ten Default under this Agreement) or Xxxxxx Petroleum (10) day notice and cure period, and provided that in the absence case of a Seller Default under the LGO Asset Purchase Agreement) does not cure such material default within twenty (20) days or such additional time as is reasonably required to cure such default through the use of Sellers’/Xxxxxx Petroleum’s best efforts (such additional time not to exceed 45 days) after its receipt of such failure to close Purchaser would have been ready, willing and able to closenotice, Purchaser and LGO, as their sole and exclusive remedy for any such Seller Default, shall have the right to terminate this Agreement and the LGO Asset Purchase Agreement, in which case the Deposit shall be entitled returned to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs Purchaser and expenses incurred $950,000.00 (the “Purchaser Agreed Damages”) shall be paid by Sellers to Purchaser as liquidated damages and not as a penalty. Purchaser and LGO agree to accept payment of the Purchaser Agreed Damages by Purchaser as their sole and exclusive remedy and in connection with full settlement and discharge of all obligations of Sellers under this Agreement and Xxxxxx Petroleum under the LGO Asset Purchase Agreement, including reasonable attorney’s fees without further recourse in law or equity. The Purchaser and LGO (collectively, purchaser under the “Pursuit Costs”)LGO Asset Purchase Agreement) shall agree among themselves as to the allocation of the Purchaser Agreed Damages between them. For purposes The provisions of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 10.4 shall fully survive the expiration Closing or earlier termination of this Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Lehigh Gas Partners LP)
Seller’s Default. If Seller breaches at any of its representations, warranties, covenants and/or agreements hereunder time on or fails to consummate the purchase and sale contemplated herein by before the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under is in default of any of its obligations hereunder or any of Seller’s representations or warranties are, in the Related Contractsaggregate, and if Purchaser untrue, inaccurate or the applicable Related Purchaser has notified Seller or such Related Seller incorrect in any material respect due to Seller’s intentional act in violation of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent and such default continues for five (5) Business Days after written notice from Buyer (which written notice shall return describe such default with reasonable specificity, but in no event shall such notice and cure period be available to Seller for failure to close on the Deposit Closing Date), Buyer shall have the right to Purchaser elect, as its sole and neither party will have any further obligation exclusive remedy, to: (A) subject to the other hereunderSeller’s rights set forth in Section 7.4 of this Agreement, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because with respect to the affected Property by written notice to Seller, promptly after which (x) the applicable portion of a default under a Related Contract if the respective Related Purchasers have also terminated all Deposit (minus the Related Contracts due Independent Consideration) shall be returned to such default). AlternativelyBuyer, in the event (y) Seller shall willfully fail reimburse Buyer, with respect to close as required hereunderthe applicable terminated Property only, Purchaser at for its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser actual out-of-pocket costs incurred in accordance connection with the terms negotiation and conditions performance of this Agreement. In , including without limitation, Buyer’s due diligence costs and any fees or deposits made by Buyer to a potential lender), but in no event shall Purchaser be entitled such reimbursement exceed an amount equal to monetary damages the Reimbursement (as defined below), and (z) thereafter, the parties shall have no further rights or obligations hereunder except for a failure indemnity and other obligations that expressly survive the termination of Seller this Agreement, (B) waive the default or breach and proceed to close hereunderthe Closing without any reduction of or credit against the Purchase Price, with the exception that or (C) seek specific performance solely in the case of a willful Seller’s failure of Seller or refusal to close hereunder after the foregoing ten (10) day notice and cure periodtransaction under this Agreement; provided, and provided however, that in the absence event specific performance is unavailable due to Seller’s intentional conveyance of such failure any Property to close Purchaser would have been readya third party purchaser, willing and able to close, Purchaser then Buyer shall be entitled to recover from Seller Purchaserits Reimbursement plus the difference between the Purchase Price for such Property under this Agreement and the purchase price that Seller sold the applicable Property to a third party purchaser. As a condition precedent to Buyer exercising any right it may have to bring an action for specific performance hereunder, Bxxxx must commence such an action within forty-five (45) days after the Closing Date. Buyer agrees that its failure to timely commence such an action for specific performance within such forty-five (45) 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. Notwithstanding anything to the contrary contained in this Agreement, Buyer shall have no right to file any lis pendens against the Property except in connection with a timely filing of an action for specific performance as set forth in this Section 11.1. As used herein the term “Reimbursement” shall mean an amount equal to Four Hundred Thousand and No/100 Dollars ($400,000.00) if Buyer terminates this Agreement with respect to all of the Properties or, if Buyer shall terminate this Agreement with respect to less than all of the Properties as a result of a default by Seller, the “Reimbursement” shall mean Four Hundred Thousand and No/100 Dollars ($400,000.00) times a fraction, the numerator of which shall be the number of Properties which Buyer does not purchase due to a default by Seller under this Agreement and the denominator of which shall be eleven (11) representing the original amount of Properties as of the Effective Date. The applicable Reimbursement shall be further reduced by the amount of any of Buyer’s reasonable, Due Diligence Costs which were paid for by Seller pursuant to Section 10.3 above and were not otherwise reimbursed or credited to Seller by Bxxxx. The Reimbursement shall be limited to those out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including for which Buyer provides reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes evidence of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreement.costs incurred
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Plumas Bancorp), Purchase and Sale Agreement (Plumas Bancorp)
Seller’s Default. If Seller breaches any of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale transaction contemplated herein by the Closing Datethis Agreement for any reason other than Purchaser’s default, failure of a condition to Seller’s obligation to close, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any the permitted termination of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified this Agreement by Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such noticePurchaser as expressly provided herein, then Purchaser shall be entitled at entitled, as its option sole remedy, either (a) to notify Seller receive the return of the election Xxxxxxx Money from Escrow Agent and Seller shall reimburse Purchaser for Purchaser’s actual, out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred in connection with the transaction contemplated by Purchaser to terminate this Agreement, whereupon Escrow Agent up to a maximum amount of $50,000, as reasonably demonstrated to Seller (e.g., with copies of invoices, paid receipts, etc.) (such amount, the “Diligence Reimbursement”), which return and reimbursement shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect operate to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated and release Seller from any and all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required liability hereunder, Purchaser at its election shall be entitled or (b) to bring suit for enforce specific performance, inasmuch as performance of the parties recognize obligation of Seller to execute and acknowledge that deliver the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations documents required to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no Except as set forth in the next sentence of this Section 8.2, Purchaser expressly waives its rights to seek damages in the event shall Purchaser be entitled to monetary damages for a failure of the default of Seller hereunder. In the event Seller deliberately or willfully refuses or fails to close hereunder, with consummate Closing in violation of the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes terms of this Agreement, by selling the Property to a willful failure third party rather than to Purchaser, and as a result thereof specific performance is not an available remedy to Purchaser, then in addition to the remedies provided in this Section 8.2, Purchaser may bring an action against Seller for Purchaser’s actual damages incurred (but not consequential or default punitive damages) as the result of Seller is conveying the Property to such third party; provided, however, Purchaser’s damages (as proven in such action) shall not exceed three (3) times the difference in the Purchase Price set forth herein and the purchase price received by Seller in a failure sale of the Property to a third party. Purchaser shall be deemed to have elected to terminate this Agreement and to receive a return of the Xxxxxxx Money from Escrow Agent if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction, on or default before forty-five (45) days following the date upon which the Closing was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreementhave occurred.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Real Estate Fund Xiii L P)
Seller’s Default. If In the event Seller breaches any is in material breach of its representations, warranties, covenants and/or agreements hereunder or fails or refuses to consummate the purchase and sale contemplated herein by the Closing Dateperform its material obligations under this Agreement, or ifthen, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within after not less than ten (10) days prior written notice and opportunity to cure, in addition to Purchaser’s rights and remedies (and subject to the limitations under the first paragraph of such noticeSection 6) with regard to Seller’s breach of any of its representations and warranties hereunder, then Purchaser at Purchaser’s option, as Purchaser’s sole remedies hereunder either (a) the Exxxxxx Money, to the extent paid, shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit refunded to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is uniqueon demand, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from reimbursement by Seller of Purchaser’s reasonableactual, documented, out-of-pocket third-party expenses and costs, including reasonable attorneys’ fees, incurred by Purchaser in connection with its due diligence costs investigations of the Property not to exceed Twenty-Five Thousand and expenses 00/100 Dollars ($25,000.00), whereupon this Agreement shall be terminated and neither party shall have any further rights or obligations with respect hereto except as specifically set forth herein, or (b) Purchaser shall have the right to seek specific performance of this Agreement, which right must be exercised by Purchaser within thirty (30) days of delivery of Purchaser’s written default notice to Seller described above. Purchaser shall have no right to receive any other equitable or legal relief. Notwithstanding the foregoing, Purchaser shall be deemed to have elected to pursue the remedy set forth in clause (a) above as its sole and exclusive remedy if Purchaser fails to file suit for specific performance against Seller on or before thirty (30) days following the scheduled Closing Date. Purchaser shall not be entitled to record a lis pendens against the Property other than in connection with any such timely filed specific performance action. Notwithstanding the provisions of this Section 12.1, in the event specific performance is unavailable because of an act of willful misconduct by Seller (for example, but not by way of limitation, because Seller has conveyed or encumbered all or a part of the Property to a third party without notice) or in the event Seller’s default is as a result of the willful misconduct of Seller, Purchaser shall, in addition to the remedy under clause (a) above, be entitled to recover its actual damages (but not exemplary or punitive damages) incurred as a result of Seller’s default in an amount not to exceed Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00). The remedies set forth in this Section 12.1 shall be Purchaser’s sole remedies arising from a default, breach or failure to perform by Seller. Purchaser hereby waives for itself and anyone who may claim by or through Purchaser, any and all rights to pursue any other remedial rights or sxx or recover any amounts from Seller (including, without limitation, punitive, indirect and consequential damages), except to the extent set forth in the foregoing clauses (a) or (b) and except as set forth in Section 6.14, and shall not commence or pursue any such remedy. No partner, manager of, member or, beneficial interest holder in or agent of Seller, nor any advisor, trustee, manager, member, director, officer, employee, beneficiary, shareholder, participant, representative or agent of any company, corporation or trust that is or becomes a member, trustee or manager of Seller (collectively “Seller Parties”), shall have any personal liability, directly or indirectly, under or in connection with this Agreement, including reasonable attorney’s fees (collectively, Agreement or any agreement made or entered into under or pursuant to the “Pursuit Costs”). For purposes provisions of this Agreement, or any amendment or amendments to any of the foregoing made at any time or times, heretofore or hereafter, or in or with respect to any document, agreement or instrument delivered at Closing, except to the extent such parties are determined, pursuant to a willful failure or default of Seller is a failure or default which was within Seller’s knowledge final, non-appealable judgment, to have knowingly and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreementintentionally defrauded Purchaser.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Medalist Diversified REIT, Inc.)
Seller’s Default. If Seller breaches any of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement hereby is not consummated because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due by Seller in its obligation to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that sell the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to closethen, Purchaser shall may, as its sole and exclusive remedy at law or in equity: (a) terminate this Agreement by giving written notice thereof to Seller, in which event the Deposit will be entitled returned to recover from Seller Purchaser promptly following Purchaser’s reasonable, compliance with its obligations under Section 5.3(c) and Seller shall reimburse Purchaser for its reasonable third-party out-of-pocket due diligence costs and expenses expenses, as supported by reasonable documentation, incurred by Purchaser in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes negotiation and preparation of this AgreementAgreement and in connection with Purchaser’s inspection of the Property in an amount not to exceed 50,000.00), a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control the parties shall have no further obligation to prevent. This Section 11.2 shall fully each other except for those obligations that expressly survive the expiration or earlier termination of this Agreement; (b) waive such default and consummate the transactions contemplated hereby in accordance with the terms of this Agreement; or (c) specifically enforce this Agreement (but without damages); provided, however, that it shall be a condition to Purchaser’s right to specific performance that Purchaser shall have performed or tendered performance of all of its material obligations required to be performed under this Agreement by no later than the Closing, provided further that Purchaser shall not be obligated to deposit the balance of the Purchase Price into the escrow with Escrow Agent as a condition to commencement of, or during the continuance of, the specific performance action provided that Purchaser has the financial ability to perform and pay the balance of the Purchase Price at any time of determination. Purchaser hereby irrevocably waives any other right or remedy for such default. As a condition precedent to Purchaser exercising any right to bring an action for specific performance as the result of Seller’s default hereunder, Purchaser must commence such action within forty-five (45) days after the originally scheduled Closing Date. Purchaser agrees that its failure timely to commence such an action for specific performance within such forty-five (45) day period shall be deemed a waiver by it of its right to commence such an action. Nothing contained in this section shall limit Purchaser’s right to receive reimbursement for costs and expenses pursuant to Section 11.8 below.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (GCP Applied Technologies Inc.)
Seller’s Default. If any Seller breaches defaults in any of material respect hereunder, then Purchaser, as its representationssole remedy, warrantiesmay, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Dateat its option, either (x) terminate this Agreement, or if, pursuant (y) bring an action against such defaulting Seller to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller seek specific performance of such default and Seller or such Related Seller has failed defaulting Seller's obligations hereunder to cure such default within ten (10) days of such noticeand to consummate the transaction contemplated hereby. If any Seller makes a material misrepresentation to Purchaser hereunder, then Purchaser shall be entitled Purchaser, as its sole remedy, may, at its option to notify Seller of the election by Purchaser to option, terminate this Agreement, whereupon Escrow Agent shall return the Deposit to . If Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect exercises its rights to terminate this Agreement because as aforesaid, then Sellers promptly shall return the Letter of Credit (or the proceeds thereof, if theretofore presented for payment) to Purchaser, and thereupon, no party shall have any continuing rights, duties, or obligations hereunder with respect to either the 550/330 Property or the 2 Park Interests (except that the parties' obligations under Section 10 and Section 15.9 hereof shall survive said termination); provided, however, that if Purchaser exercises its right to terminate this Agreement as a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to result of either (x) any Seller's intentional misrepresentation, or (y) any Seller's fraud, then such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property promptly pay to Purchaser in accordance with an amount equal to the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred by Purchaser in connection with the transactions contemplated by this AgreementAgreement (it being understood that (I) such amount shall not exceed Five Hundred Thousand Dollars ($500,000), including reasonable attorney’s fees and (collectivelyII) Seller shall be deemed to have made an intentional misrepresentation for purposes of determining whether Purchaser is entitled to such reimbursement for such out-of-pocket costs and expenses if Seller (A) as of the date hereof, has actual current knowledge that any of the “Pursuit Costs”statements set forth in Section 9.3 are untrue in any material respect as of the date hereof, and (B) has heretofore intentionally failed to advise Purchaser thereof). For purposes Subject to the other provisions of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination provisions of this AgreementSection 14.2 shall not limit Purchaser's rights against Sellers after the Closing in respect of any obligation or liability of Sellers hereunder that survives the Closing.
Appears in 1 contract
Samples: Sale Purchase Agreement (Mendik Real Estate Limited Partnership)
Seller’s Default. If (a) Provided that Purchaser is ready, willing and able to close under this Agreement, if Seller breaches any of its representations, warranties, covenants and/or agreements hereunder or fails to consummate close in accordance with the purchase and sale contemplated herein by the Closing Dateterms of this Agreement, shall be in breach or if, pursuant to Section 5.2 above, any Related Seller has defaulted under default of any of the Related Contractsterms or conditions of this Agreement or shall be in breach of or materially misstated any representation, and if warranty or covenant of Seller contained in this Agreement, then Purchaser or shall give Seller written notice specifying the applicable Related Purchaser has notified nature of the default.
(b) Seller or such Related shall have ten (10) business days from receipt of Purchaser's notice of default within which to cure the specified default. If Seller of such default and Seller or such Related Seller has failed to does not cure such default within said ten (10)- day period or if such default is not waived in writing by Purchaser, then Purchaser, at its option, shall have the right within ten (10) days after the expiration of such noticethe said ten (10)-day grace period, then to do any one or more of the following:
(i) Terminate this Agreement, by written notice given to Seller in which event the Seller and Purchaser shall be entitled at its option relieved from all other obligation and liability hereunder,
(ii) Elect by written notice given to notify Seller to proceed to Closing, in which event Purchaser may demand specific performance of this Agreement by Seller, and, if necessary, file an action therefor.
(c) If Seller fails to deliver possession of the election by Purchaser to terminate this AgreementProperty at Closing, whereupon Escrow Agent then Seller shall return the Deposit to become a tenant at sufferance of Purchaser and neither party will shall be deemed to have any further obligation waived trial by jury and all notices to the other hereunderquit, other than the obligations and Purchaser may proceed to recover possession of the Purchaser Property under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreementapplicable law.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Seawright Holdings Inc)
Seller’s Default. If Seller breaches any of its representationsfails, warrantiesrefuses, covenants and/or agreements hereunder or fails is unable to consummate the purchase and sale contemplated herein by the Closing Dateafter all conditions precedent to Seller’s obligations have been satisfied, or if, pursuant to Section 5.2 above, any Related if Seller has defaulted under any of the Related Contracts, and if Purchaser breaches a representation or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such noticewarranty hereunder, then Purchaser shall be entitled at its option may elect the following alternatives; (i) to notify extend the Closing Date for up to thirty (30) days in order to enable Seller of the election by Purchaser to satisfy or cure such breach or default or to satisfy such condition precedent; (ii) to terminate this Agreement, whereupon Escrow Agent shall return by providing notice thereof to Seller and the Title Company, in which event the Deposit shall be returned to the Purchaser, Seller shall reimburse Purchaser for all costs and expenses up to but not exceeding $100,000 in the aggregate incurred by Purchaser prior to the effective termination date, and this Agreement shall be of no further force and effect, with neither party will have having any further obligation obligations hereunder (excepting such obligations that expressly survive termination of this Agreement); and/or (iii) to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, commence and prosecute an action in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit equity for specific performance, inasmuch as performance to compel the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to the Purchaser in accordance with the terms and conditions provisions of this Agreement. In Notwithstanding anything to the contrary contained in this Agreement, Purchaser agrees that in no event shall Purchaser seek or obtain any recovery or judgment against any of Seller’s directors, officers, employees, shareholders, members, or managers. Purchaser further agrees that Seller shall have no liability to Purchaser for any breach of Seller’s covenants, representations or warranties hereunder or under any other agreement, document, certificate or instrument delivered by Seller to Purchaser, or under any law applicable to the property or this transaction unless the valid claims for all such breaches collectively aggregate more than Twenty-Five Thousand Dollars ($25,000.00), in which event the full amount of such valid claims shall be actionable, up to the Cap set forth in the following sentence. Further, Purchaser agrees that any recovery against Seller for any breach of Seller’s covenants, representations or warranties hereunder or under any other agreement, document, certificate or instrument delivered by Seller to Purchaser, or under any law applicable to the Property or this transaction, shall be limited to Purchaser’s actual damages not in excess of Five Hundred Thousand Dollars ($500,000.00) in the aggregate (the “Cap”), and that in no event shall Purchaser be entitled to seek or obtain any other monetary damages of any kind, including, without limitation, consequential, indirect or punitive damages. From and after the Closing Date, for a failure period of time expiring on December 25, 2005, Seller to close hereundershall maintain unencumbered liquid assets of not less than $500,000.00 or a net worth of not less than $1,000,000.00. Promptly after request of Purchaser, with the exception that in the case of a willful failure of Seller to close hereunder which request may be made once after the foregoing ten (10) day notice and cure periodClosing Date, and provided that in the absence Seller shall deliver to Purchaser a balance sheet or other reasonably satisfactory evidence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”)liquidity or net worth. For purposes The provisions of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge Article and reasonable control to prevent. This Section 11.2 the obligations hereunder shall fully survive the expiration or earlier termination delivery of this Agreementthe Deed and the Closing and shall not be merged therein.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Real Estate Fund Xiv Lp)
Seller’s Default. If Seller breaches Notwithstanding any provision in this Agreement to the contrary, if Closing does not occur by reason of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein a material default by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within Sellers which continues for ten (10) days of such noticeafter written notice from Buyer, then Purchaser Buyer shall be entitled have the right, as its sole and exclusive remedies at its option to notify Seller of the election by Purchaser law and in equity, either (a) to terminate this Agreement, whereupon Escrow Agent in which event Buyer shall return receive a prompt refund of the Xxxxxxx Deposit to Purchaser and neither party will of the parties hereto shall have any further obligation rights or obligations hereunder except for obligations that specifically survive the termination, or (b) to the other specific performance of Sellers’ obligations hereunder, other than the obligations of the Purchaser under Section 4.1 provided, that: (provided Purchaser may only elect i) any action brought by Buyer for specific performance be commenced within sixty (60) days from Buyer’s right to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to pursue such default). Alternatively, remedy; and (ii) in the event Seller that such default is of a nature that Buyer shall willfully fail not be able to close as required hereunderobtain specific performance (e.g., Purchaser at its election Sellers have conveyed the Property to a bona fide third party for value who takes without knowledge of this Agreement), then Buyer shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller reimbursement from Sellers of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions all third party out of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with the transaction contemplated hereby, but not in excess of Fifty Thousand and 00/100 Dollars ($50,000.00) in the aggregate, and Buyer shall be entitled, notwithstanding the foregoing, to maintain an action for damages against Sellers to collect the same should Sellers fail to pay the same within 30 days after delivery to Sellers of an itemized statement therefor together with reasonable supporting documentation evidencing such costs and expenses. No other remedy or relief shall be available to Buyer, and Buyer hereby waives any and all other remedies. The limitation on remedies set forth in this AgreementSection 10.1 shall not apply to any indemnities, including reasonable attorney’s fees (collectivelycovenants or obligations of Sellers, if any, which expressly survive either the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this AgreementAgreement or Closing, as set forth herein.
Appears in 1 contract
Samples: Purchase Agreement (Phillips Edison - ARC Shopping Center REIT Inc.)
Seller’s Default. If Seller breaches fails to perform any of its representationsobligations or is otherwise in default hereunder, warranties, covenants and/or agreements hereunder breaches a material representation or fails to consummate the purchase and sale contemplated herein by the Closing Datewarranty, or if, willfully causes the failure of a condition precedent pursuant to Section 5.2 above5.4 hereof (as applicable, a “Seller Default), Buyer shall have the right to elect, in its sole and absolute discretion to:
6.2.1 Waive such failure and proceed to the Closing with no reduction in the Purchase Price; provided, however, that this provision will not limit Buyer’s or Seller’s right to receive reimbursement for attorney’s fees pursuant to Section 9.8 below in connection with any Related Seller has defaulted under any legal proceedings instituted by either party or Escrow Agent with respect to the enforcement of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the nor waive or affect Seller’s indemnity obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due or Buyer’s rights to such default). Alternativelyenforce those indemnity obligations, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller nor waive or affect any of Seller’s other obligations under this Agreement to be performed after the Closing or Buyer’s rights to enforce those obligations, nor waive or affect Buyer’s indemnity obligations or other obligations herein not prejudiced or adversely affected by Seller’s Default;
6.2.2 Exercise any of its other rights or remedies Buyer may have at law or in equity, including, without limitation, an action for specific performance to cause Seller to convey the Property to Purchaser in accordance with Buyer pursuant to the terms and conditions of this Agreement. In no event shall Purchaser be entitled ; or
6.2.3 Terminate this Agreement in its entirety by notice to monetary damages for a failure of Seller to close that effect, in which event the parties hereto shall have no further obligations hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten except those which survive termination hereof (10) day notice and cure period, and provided that in the absence of such failure this provision will not limit Buyer’s or Seller’s right to close Purchaser would have been ready, willing and able receive reimbursement for attorney’s fees pursuant to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred Section 9.8 below in connection with this Agreement, including reasonable attorney’s fees (collectively, any legal proceedings instituted by either party or Escrow Agent with respect to the “Pursuit Costs”). For purposes enforcement of this Agreement, a willful failure nor waive or default of Seller is a failure or default which was within affect Seller’s knowledge indemnity obligations under this Agreement or Buyer’s rights to enforce those indemnity obligations), and reasonable control to preventrecover the full amount of the Deposit, to receive reimbursement of Buyer’s actually incurred, out of pocket costs in conjunction with the Agreement and to recover all damages and seek such other relief at law or in equity to which Buyer may be entitled as a result of Seller’s breach. For the avoidance of doubt, in the event of a Seller Default, the foregoing reimbursement obligation shall survive any termination of this Agreement.
6.2.4 This Section 11.2 6.2 shall fully survive the expiration Closing or earlier termination of this Agreement.
Appears in 1 contract
Samples: Real Estate Purchase Agreement (Griffin-American Healthcare REIT IV, Inc.)
Seller’s Default. If Seller breaches any of its representations, warranties, covenants and/or agreements hereunder or wrongfully fails to consummate close the purchase and sale ---------------- transaction contemplated herein by this Contract, Purchaser may, at Purchaser's sole option, either (a) terminate this Contract, at which time the Xxxxxxx Money shall be returned to Purchaser, as Purchaser's sole remedy; or (b) enforce specific performance of this Contract against Seller by commencing a lawsuit against Seller within forty-five (45) days from the Closing Date. The failure of Purchaser to commence a lawsuit against Seller, or ifseeking specific performance of this Contract against Seller, pursuant within such forty-five (45) day period shall irrevocably be deemed to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the an election by Purchaser to terminate this Agreementhave the Xxxxxxx Money returned to Purchaser, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other as Purchaser's sole remedy hereunder, other than the obligations and as an irrevocable waiver of Purchaser's right to seek specific performance of this Contract. The remedies of a return of the Purchaser Xxxxxxx Money or specific performance shall be Purchaser's sole remedies under Section 4.1 (provided Purchaser may only elect the default by Seller under this Contract. By execution hereof, Seller acknowledges that the Title Company shall have no liability to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, Seller in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as it delivers the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property Xxxxxxx Money to Purchaser in accordance with the terms and conditions of this AgreementSection 5.2; and Seller agrees that the Title Company shall comply with the provisions of this Section 5.2 without the need for subsequent approval or authorization from Seller. The delivery of the Xxxxxxx Money to Purchaser will be Purchaser's sole and exclusive remedy under this Contract. In no event shall Seller be liable to Purchaser for any other actual, punitive, speculative, or consequential damages, or damages for loss of opportunity or lost profit; nor shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes enforce specific performance of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this AgreementContract.
Appears in 1 contract
Seller’s Default. If Seller breaches fails to perform any of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, obligations under this Agreement for any Related Seller has defaulted under any of the Related Contracts, and if Purchaser reason other than Purchaser’s default or the applicable Related Purchaser has notified permitted termination of this Agreement by Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such noticePurchaser as expressly provided herein, then Purchaser shall be entitled at entitled, as its option sole remedy, either (a) to notify Seller receive the return of the election Exxxxxx Money from Escrow Agent and reimbursement from Seller for the out-of-pocket costs and expenses actually incurred by Purchaser to terminate in connection with the negotiation of and performance of this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations Purchaser’s investigation of the Purchaser under Section 4.1 (provided Purchaser may only elect Property and any rate lock breakage fees in connection with Purchaser’s proposed financing for the Property, including, without limitation, attorney’s fees and expenses, all in an amount not to exceed $2,000,000.00, which return and reimbursement shall operate to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated and release Seller from any and all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required liability hereunder, Purchaser at its election shall be entitled or (b) to bring suit for enforce specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller performance of Seller’s obligations obligation to execute and deliver the documents required to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event ; it being specifically understood and agreed that the remedy of specific performance shall Purchaser not be entitled available to monetary damages for a failure enforce any other obligation of Seller to close hereunder, with the exception that . Except as expressly set forth in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice immediately preceding sentence and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaserfor Seller’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes indemnification obligations under Section 11.1 of this Agreement, a willful failure or default Purchaser expressly waives its rights to seek damages in the event of Seller is a failure or default which was within Seller’s knowledge pre-Closing default hereunder. Purchaser shall be deemed to have elected to terminate this Agreement and reasonable control to prevent. This Section 11.2 shall fully survive receive a return of the expiration Exxxxxx Money from Escrow Agent if Purchaser 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 earlier termination of this Agreementbefore sixty (60) days following the date upon which the Closing was to have occurred.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cousins Properties Inc)
Seller’s Default. If Seller breaches any of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, (i) Purchaser has not delivered a Termination Notice pursuant to Section 5.2 above, any Related Seller has defaulted under 4.1.1 and (ii) any of the Related Contracts, Seller’s representations or warranties hereunder is not true and if Purchaser correct in any material respect or the applicable Related Purchaser has notified Seller fails to perform its covenants or such Related obligations hereunder in any material respect other than due to a Purchaser’s Default (a “Seller of such default Default”) and Seller’s Default is not cured by Seller or such Related Seller has failed to cure such default within ten (10) days of such noticereceipt of written notice thereof of Purchaser, then Purchaser shall be entitled at Purchaser, as its option to notify Seller of the election by Purchaser to sole and exclusive remedies, may elect to: (a) terminate this Agreement, whereupon Escrow Agent shall return in which case the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election Exxxxxx Money shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property refunded to Purchaser in accordance with Section 3.2.4, and Seller shall reimburse Purchaser for all third party out-of-pocket costs and expenses actually incurred by Purchaser and its Affiliates in connection with Purchaser’s due diligence investigations and the terms negotiation of this Agreement and conditions Purchaser’s efforts to consummate the Contemplated Transactions (which reimbursement shall be capped at $300,000), and Seller shall promptly pay such amounts to Purchaser upon receipt of documentation showing the amount of such costs and expenses, after which the Parties shall have no further rights or obligations under this Agreement, except those which expressly survive such termination; (b) proceed to Closing in which case Purchaser shall be deemed to have waived such Seller Default and, if applicable, any Purchaser Closing Condition that is not satisfied as a result of such Seller Default; or (c) seek specific performance, by commencing legal action within forty- five (45) days following the expiration of any applicable cure period, with Seller responsible for costs and attorneys’ fees incurred by Purchaser in connection with obtaining such relief and with a reduction in or setoff against the Purchase Price as the court may deem appropriate. The preceding clause (a) shall survive the termination of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception acknowledges and agrees that irreparable damage would occur in the case event that Seller fails to take such actions as are required of a willful failure of it hereunder to consummate the Contemplated Transactions. Accordingly, Seller to close hereunder after the foregoing ten (10) day notice acknowledges and cure period, and provided agrees that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from specific performance as provided in this Section 12.1. Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred agrees that it will not oppose the granting of specific performance as provided in connection with this Agreement, including reasonable attorney’s fees (collectively, Section 12.1 on the “Pursuit Costs”). For purposes basis that Purchaser has an adequate remedy at law or that any award of this Agreement, a willful failure specific performance is not an appropriate remedy for any reason at law or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreementin equity.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Lightstone Value Plus Real Estate Investment Trust V, Inc.)
Seller’s Default. If 6.2.1 If, prior to Closing, Seller breaches any is in default under this Agreement or causes the failure of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase a condition precedent set forth in Section 5.4 hereof that is (i) within Seller’s control and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or (ii) such Related Seller of such default and Seller or such Related Seller has failed to cure such default failure is not cured within ten five (105) days of receiving written notice from Buyer, Buyer shall have the right to elect, in its sole and absolute discretion to:
(a) Waive such noticefailure and proceed to the Closing with no reduction in the Purchase Price.
(b) Seek specific performance against Seller, then Purchaser shall be entitled at its option to notify Seller so long as such action for specific performance is filed within ninety (90) days of the election by Purchaser to terminate Seller’s breach or default under this Agreement, whereupon Escrow Agent shall return in which event the Deposit Closing Date will be automatically extended as necessary for Buyer to Purchaser and neither party prosecute such action. Notwithstanding the foregoing, if specific performance is made unavailable as a remedy to Buyer by Seller’s affirmative acts or intentional omissions, Buyer will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performancepursue all rights and remedies available at law or in equity.
(c) Terminate this Agreement by notice to Seller to that effect, inasmuch as in which event the parties recognize and acknowledge that the Property is uniquehereto shall have no further obligations hereunder, except those which survive termination hereof, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by (1) recover the full amount of the Deposit (less the Independent Contract Consideration), and (2) receive reimbursement from Seller of SellerBuyer’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, actually incurred out-of-pocket due diligence costs paid to third parties, for which invoices shall be provided by Buyer prior to payment being required from Seller, in conjunction with this Agreement in an amount not to exceed One Hundred Thousand and expenses incurred No/100 Dollars ($100,000.00).
6.2.2 If Seller is in connection default under this Agreement following the Closing Date, including a breach of any representations and warranties set forth in Section 4.1 hereof, then Buyer’s sole and exclusive remedies shall be to obtain the Escrow Funds (as defined in the Post-Closing Escrow Agreement) and pursue Seller for an additional amount up to One Hundred Thousand and No/100 Dollars ($100,000.00), with such additional amount being in addition to the amount of the Escrow Funds..
6.2.3 Notwithstanding anything to the contrary contained in this Agreement, including reasonable attorney’s fees (collectively, Buyer shall not be required to fund the “Pursuit Costs”). For purposes balance of this Agreement, a willful failure or default the Purchase Price in order to enforce any of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of its remedies under this Agreement.
Appears in 1 contract
Samples: Real Estate Purchase Agreement (Griffin-American Healthcare REIT III, Inc.)
Seller’s Default. If Seller breaches fails to perform any of its representationsobligations under this Agreement for any reason other than Purchaser’s default, warranties, covenants and/or agreements hereunder or fails failure of a condition to consummate the purchase and sale contemplated herein by the Closing DateSeller’s obligation to close, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any the permitted termination of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified this Agreement by Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (as expressly provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to closeherein, Purchaser shall be entitled entitled, as its sole remedy, either (a) to recover receive the return and payment of the Xxxxxxx Money from Seller Purchaser’s reasonable, Escrow Agent together with its documented out-of-pocket due diligence costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with this Agreement and its due diligence investigations of the Property, not to exceed a total of $50,000, which return and payment shall operate to terminate this Agreement and release Seller from any and all liability hereunder, or (b) to enforce specific performance of the obligations of Seller in accordance with this Agreement. Except as set forth in the next sentence of this Section 8.2, including reasonable attorney’s fees (collectively, Purchaser expressly waives its rights to seek damages in the “Pursuit Costs”)event of the default of Seller hereunder. For purposes In the event that specific performance is not an available remedy to Purchaser due to the acts of Seller in breach of this Agreement, then in addition to the remedies provided in this Section 8.2, Purchaser may bring an action against Seller for Purchaser’s actual damages incurred (but not consequential or punitive damages). Purchaser shall be deemed to have elected to terminate this Agreement and to receive a willful failure return of the Xxxxxxx Money from Escrow Agent if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction, on or default before sixty (60) days following the date upon which the Closing was to have occurred. Notwithstanding anything to the contrary contained herein, nothing contained in Section 8.2 shall limit Purchaser’s post-Closing remedies at law or in equity as to the indemnity of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully in Article 9 that by the terms of this Agreement survive the expiration or earlier termination of this Agreement.Closing
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Real Estate Fund Xiii L P)
Seller’s Default. If If, at or any time prior to Closing, Seller breaches fails to perform in any material respect any of its representationscovenants or obligations under this Agreement (and, warrantiesif such failure is other than a failure to deliver Seller’s Closing Deliveries (for which there shall be no notice or cure period), covenants and/or agreements hereunder or Seller fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default condition failure within ten five (105) days after written notice of such notice, then Purchaser shall be entitled at its option to notify Seller of the election failure is delivered by Purchaser to terminate this AgreementSeller) (a “Seller’s Default”), whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect elect, as its sole and exclusive remedy, to (a) terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due by providing written notice to such default). AlternativelySeller, in which case the event Seller shall willfully fail to close as required hereunder, Purchaser at its election Deposit shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property refunded to Purchaser in accordance with Section 3.2.4 and the terms Parties shall have no further rights or obligations under this Agreement, except those which expressly survive such termination, and conditions Seller shall reimburse (which obligation shall survive such termination of this Agreement. In no event shall ) Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, actual out-of-pocket due diligence costs and expenses costs, in any event not to [***], incurred in connection to third parties with this Agreement, including reasonable attorney’s fees (collectivelyrespect to the investigation of the Property, the “Pursuit Costs”). For purposes negotiation of this AgreementAgreement and Purchaser’s pursuit of the transactions contemplated herein, or (b) waive such default and proceed to Closing without any reduction in or setoff against the Purchase Price, or (c) obtain a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to preventcourt order for specific performance. This Section 11.2 shall fully survive the expiration or earlier termination of this AgreementIN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT MEMBERS, PARTNERS, SHAREHOLDERS, OWNERS 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; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL THE FOREGOING LIMIT GUARANTOR’S OBLIGATIONS PURSUANT TO THE GUARANTY.
Appears in 1 contract
Samples: Asset Purchase Agreement (CNL Healthcare Properties II, Inc.)
Seller’s Default. If Seller breaches any of its representations, warranties, covenants and/or agreements hereunder or fails the Sellers fail to consummate the purchase sale of the Properties pursuant to this Agreement or otherwise default on their obligations hereunder at or prior to Closing for any reason except failure by Purchaser to perform hereunder, or if prior to Closing any one or more of the Sellers’ representations or warranties are breached in any material respect (i.e. in accordance with Section 3.2(g)), and sale contemplated herein such default or breach is not cured by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any earlier of the Related Contracts, and if fifth (5th) Business Day after written notice thereof from Purchaser or the applicable Related Purchaser has notified Seller Closing Date (provided that no notice or such Related Seller cure period shall apply if the Sellers fail to timely consummate the sale of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such noticethe Properties hereunder), then Purchaser shall be entitled at elect, as its option to notify Seller of the election by Purchaser to terminate this Agreementsole remedy, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 either (provided Purchaser may only elect a) to terminate this Agreement because by giving the Sellers written notice of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due such election prior to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser or at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is uniqueClosing, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller recover the Exxxxxx Money and reimbursement of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, actual out-of-pocket due diligence costs and third-party expenses incurred in connection with this Agreement, including reasonable attorney’s fees up to a maximum reimbursement of $750,000.00, (collectivelyb) to enforce specific performance to consummate the sale of the Properties hereunder; provided, however, that if any Seller willfully conveys any of the “Pursuit Costs”). For purposes Properties to a third party or third parties, such that the remedy of this Agreementspecific performance is unavailable to Purchaser, a willful Purchaser shall have the right to seek its actual damages against the Sellers in an amount not to exceed $3,600,000.00 in the aggregate, or (c) to waive said failure or default breach and proceed to Closing without any reduction in the Purchase Price. In no event shall the Sellers be liable for consequential, speculative, remote or punitive damages, or any other damages except as specifically provided herein, and Purchaser hereby waives and releases any right to seek or collect any such consequential, speculative, remote or punitive damages. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected option (a) above if Purchaser fails to deliver to the Sellers written notice of Seller its intent to file a claim or assert a cause of action for specific performance or damages against the Sellers on or before the date that is ten (10) Business Days following the scheduled Closing Date or, having given such notice, fails to file a failure lawsuit asserting such claim or default cause of action for specific performance or damages in the county in which was the Exxxxxx Money is deposited within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive forty five (45) days following the expiration or earlier termination of this Agreementscheduled Closing Date.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Bluerock Residential Growth REIT, Inc.)
Seller’s Default. If Seller breaches fails to consummate this Agreement in accordance with its terms (other than by reason of (i) Buyer's breach of any of its representations, warranties, covenants and/or agreements hereunder representations or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under warranties contained in this Agreement; (ii) Buyer's continuing default of any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within its covenants hereunder after ten (10) days prior written notice of such noticedefault; (iii) a failure of any condition to Seller's obligation to sell the Property to be satisfied; (iv) a termination of this Agreement by Seller or Buyer pursuant to a right to do so expressly provided for in this Agreement, then Purchaser except by reason of a default by either party; or (v) failure by Buyer to deliver the items required under Section 9.2), Buyer may make written demand on Seller to so perform. If Seller fails to comply with Buyer's written demand within five (5) days after receipt of such written demand for performance, Buyer shall be entitled at its option have the exclusive right to notify Seller (i) waive such default, (ii) seek specific performance of the election by Purchaser to Seller's obligations under this Agreement and, as an alternative remedy, all damages resulting from Seller's breach; or (iii) terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations obtain a refund of the Purchaser under Section 4.1 (provided Purchaser may only elect Earnest Money and be reimbursed by Seller for its actual, verifiable xxx-xx-pocket expenses plus attorneys' fees and expenses incurred to terminate obtain same. Seller agrees that the Property is unique and that damages for failure by Seller to consummate the transaction contemplated by this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due will be impracticable and extremely difficult to such default)determine. AlternativelyTherefore, in the event that Seller shall willfully fail fails or refuses to close as required hereunder, Purchaser at its election shall be entitled consummate the sale of the Property to bring suit for Buyer and Buyer seeks specific performance, inasmuch as the parties recognize and acknowledge Seller specifically agrees that the Property is uniqueremedies of specific performance are appropriate remedies for Buyer, and Seller waives and agrees not to assert any claim or defense that there specific performance is no adequate not an appropriate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this AgreementBuyer. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunderUNDER NO CIRCUMSTANCES MAY BUYER SEEK OR BE ENTITLED TO RECOVER ANY PUNITIVE DAMAGES, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure periodALL OF WHICH BUYER SPECIFICALLY WAIVES, and provided that in the absence of such failure to close Purchaser would have been readyFROM SELLER FOR ANY BREACH BY SELLER OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR OF ANY REPRESENTATION, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this AgreementWARRANTY OR COVENANT OF SELLER HEREUNDER.
Appears in 1 contract
Seller’s Default. If (a) Seller breaches any of its representations, warranties, covenants and/or agreements hereunder or fails shall be in default should Seller fail to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under comply with any of the Related Contractsterms hereof. Any failure of performance by Seller, and if Purchaser caused by the act, omission or failure of performance of Buyer, which would excuse Seller's performance under the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such noticeContract, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of not constitute a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreement.
(b) Upon Seller’s default, Buyer may give Seller written notice of the default. If the default is not corrected by Seller within (“72” if blank) hours of receipt of written notice of default from Buyer, the Term of this Agreement shall terminate and Seller shall vacate the Property within (“144” if blank) hours of receipt of the written notice of default from Buyer.
(c) Regardless of whether Buyer gives written notice of default under this Section, Buyer may, upon Seller’s default, proceed with summary eviction proceedings governed by the provisions of RPAPL Article 7, including but not limited to §713 relating to “grounds where no landlord-tenant relationship exists.” Seller specifically authorizes delivery of a copy of the Notice of Petition and Petition pursuant to RPAPL §§713 and 735 and acknowledges and agrees that such delivery shall be deemed good and sufficient service upon Seller.
(d) If Seller fails to vacate the Property on or before the Termination Date, (i) Seller shall pay Buyer two hundred percent (200%) of the per diem PCOF pursuant to Section 3 above (the “Holdover PCOF”) for each day, or part of each day, until Seller vacates the Property; and (ii) Buyer may retain, in Buyer’s sole discretion, all, or part, of the Escrow Deposit. The Holdover PCOF shall be deemed the fair value of the use and occupancy of the Property by Seller. Should Buyer institute any action or proceeding to recover possession of the Property, any PCOF or Holdover PCOF, or damages resulting from Seller’s possession, Seller shall pay Buyer's expenses (including, without limitation, reasonable attorneys’ fees, disbursements, court costs, the costs of appellate proceedings, and any other reasonable costs of litigation).
Appears in 1 contract
Samples: Post Closing Occupancy Agreement
Seller’s Default. If Seller breaches fails to perform any of its representationsmaterial obligations under this Agreement, warranties, covenants and/or agreements hereunder or Purchaser shall provide Seller with written notice describing such default. In the event Seller fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such receipt of written notice, then Purchaser shall be entitled Purchaser, at its option to notify Seller of the election by Purchaser to and as its sole and exclusive remedy, may (i) terminate this Agreement, whereupon in which case the Escrow Agent shall deliver the Deposit to Purchaser, and Seller shall pay to Purchaser damages equal to the lesser of (A) the aggregate amount of out of pocket costs paid or incurred by Purchaser in negotiating and entering into this Agreement, performing its due diligence and audit, obtaining the New Franchise Agreement and Existing Loan assumption, and preparing for the Closing, or (B) one percent (1%) of the Purchase Price, and upon return of the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach payment by Seller of Seller’s obligations to convey the Property damages due to Purchaser (which Seller agrees to pay within ten (10) days after delivery of a demand notice from Purchaser accompanied by verification of its expenses paid or incurred, and if not paid when due, shall thereafter bear in accordance with interest until paid at the lesser of ten percent (10%) per annum or the maximum amount allowed by applicable law), this Agreement shall terminate, and Seller and Purchaser shall have no further rights, liabilities, or obligations under this Agreement, except those which expressly survive the termination of this Agreement; (ii) seek to specifically enforce the terms and conditions of this Agreement. In no event Agreement (in order to maintain an action for specific performance, Purchaser shall not be required to have delivered to the Title Company the remaining balance of the cash portion of the Purchase Price, if Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been is ready, willing willing, and able to closedo so, and Purchaser shall be entitled to recover from Seller furnishes reasonable evidence of Purchaser’s reasonableability to timely perform all obligations of Purchaser); or (iii) proceed to Closing notwithstanding such default. However, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectivelynotwithstanding the foregoing, the “Pursuit Costs”limit in (i) on Purchaser’s damage remedy shall not be applicable, if through affirmative actions of Seller (such as a deeding of the Property to another person), the specific performance remedy is not available to Purchaser. For purposes Also, notwithstanding anything herein to the contrary, nothing in this Section 14 shall limit Seller’s obligation to pay to Purchaser the Attorneys Fees to the extent required pursuant to Section 23 in order to enforce the provisions of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this AgreementSection.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Condor Hospitality Trust, Inc.)
Seller’s Default. If Seller breaches any of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any (a) Each of the Related Contracts, following shall constitute an act of default by Seller under this Contract (a “Seller Default”):
(i) The failure of Seller to manufacture the Equipment with such diligence and if Purchaser or in such manner as required by this Contract and the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed Specification and/or the Standards as will enable it to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller complete the delivery of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser Units in accordance with the terms Scheduled Delivery Dates , except and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages the extent that such failure is due to one or more Excusable Delays, which default continues un-remedied for a period of thirty (30) days after written notice to Seller thereof;
(ii) If due to the failure of Seller to close hereunderperform its obligations hereunder the Units of Equipment scheduled for delivery in any month pursuant to the Scheduled Delivery Dates have not been delivered within sixty (60) days after the end of the month;
(iii) Seller fails to repair or replace a Warranty Defect as provided in ARTICLE 13;
(iv) Any other material default by Seller to perform or satisfy its obligations and conditions under this Contract, with the exception that which default continues un-remedied for a period of thirty (30) days after written notice to Seller thereof;
(v) Any breach of any warranty by Seller; or
(vi) Seller or any affiliate involved in the case manufacturing of the Equipment (“Key Affiliate”) is dissolved or makes a willful general assignment for the benefit of its creditors; a receiver or custodian of any kind whatsoever is appointed, whether or not appointed in bankruptcy, common law or equity proceedings, whether temporary or permanent, for a substantial portion of the property of Seller or a Key Affiliate; Seller or a Key Affiliate files a petition for relief under any chapter of the U.S. Bankruptcy Code or similar law; a petition for relief is filed against Seller or a Key Affiliate and such petition is not dismissed by the court within sixty (60) days after the date on which such petition was filed; the admission by Seller or a Key Affiliate in writing of its inability to pay debts generally as they become due; the failure of Seller or a Key Affiliate generally to close hereunder pay its debts as they become due; or if Seller fails to assume this Contract within thirty (30) days after the foregoing ten (10) day notice and cure period, and provided that in filing of a petition by or against Seller under the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure U.S. Bankruptcy Code or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreementsimilar law.
Appears in 1 contract
Seller’s Default. If prior to Closing Seller breaches fails to perform any of its representations, warranties, covenants and/or agreements obligations or is otherwise in default hereunder or fails to consummate willfully causes the purchase and sale contemplated herein by the Closing Date, or if, failure of a condition precedent pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default 5.4 hereof and Seller or such Related Seller has failed to does not cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller after written notice of the election same (except for the Seller’s obligation to convey the Property at Closing, as to which there is no notice and cure period), Buyer shall have the right to exercise any or all of the following remedies:
6.2.1 Waive such failure and proceed to the Closing with no reduction in the Purchase Price; provided, however, that this provision will not limit Buyer’s right to receive reimbursement for attorney’s fees pursuant to Section 9.8 below in connection with any legal proceedings instituted by Purchaser either party or Escrow Agent with respect to terminate the enforcement of this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have nor waive or affect any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s other obligations under this Agreement to be performed after the Closing or Buyer’s rights to enforce those obligations.
6.2.2 Institute an action for specific performance to cause Seller to convey the Property to Purchaser in accordance with Buyer pursuant to the terms and conditions of this Agreement. In no event shall Purchaser be entitled .
6.2.3 Terminate this Agreement by notice to monetary damages for Seller and Escrow Agent to that effect, to recover the full amount of the Deposit and all earnings thereon, to receive reimbursement of Buyer’s actually incurred out of pocket costs in conjunction with the Agreement, not to exceed One Hundred Thousand Dollars ($100,000.00), and, provided that (i) Seller willfully refuses to convey the Property as set forth herein or willfully causes a failure of Seller a condition precedent under Section 5.4 above concerning a matter within the Seller’s reasonable control, and further provided that (ii) specific performance is not available to close hereunderBuyer as a remedy, to receive reimbursement of Buyer’s actually incurred out of pocket costs in conjunction with the exception that in the case of a willful failure of Seller Agreement, not to close hereunder after the foregoing ten exceed One Hundred Thousand Dollars (10) day notice and cure period$100,000.00), and provided to recover all other damages and seek such other relief at law or in equity to which Buyer may be entitled as a result of Seller’s breach, but as to damages, not exceeding a total of One Hundred Thousand and No/100 Dollars ($100,000.00) under the terms of this Agreement. Notwithstanding anything to the contrary, Buyer shall not be required to fund the balance of the Purchase Price in order to enforce its remedies under this Agreement, so long as Buyer provides reasonable documentation that in the absence of such failure to close Purchaser Buyer would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, fund the “Pursuit Costs”). For purposes balance of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this AgreementPurchase Price.
Appears in 1 contract
Samples: Real Estate Purchase Agreement (Grubb & Ellis Healthcare REIT II, Inc.)
Seller’s Default. If (i) at any time prior to Closing, Seller breaches is in material default of any of its representationscovenants or obligations under this Agreement, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein which default is not caused by the Closing Datea Purchaser Default, or if(ii) at Closing, pursuant to Section 5.2 above, any Related Seller has defaulted not satisfied the Purchaser Closing Conditions set forth in Sections 8.2(b) (each, a “Seller Default”), and Seller has not cured such Seller Default within five (5) Business Days after Seller’s receipt of written notice of such Seller Default from Purchaser, then Purchaser, as its sole and exclusive remedies for such Seller Default, may elect to (A) terminate this Agreement by written notice to Seller delivered prior to Closing, in which case, Escrow Agent shall promptly refund the Xxxxxxx Money to Purchaser, Seller shall promptly refund the Released Deposit to Purchaser and Seller shall pay Purchaser its Termination Costs (as hereinafter defined) upon Purchaser’s written notice to Escrow Agent and Seller that the same have become due, and the parties shall have no further rights or liabilities under this Agreement except for those provisions which specifically provide that they survive the termination of this Agreement; (B) waive the default and proceed to Closing without any of reduction in or setoff against the Related ContractsPurchase Price; or (C) bring an action for specific performance, and if Purchaser or the applicable Related prevails thereunder, Seller shall reimburse Purchaser has notified Seller or such Related Seller for all reasonable legal fees, court costs, and all other reasonable costs of such default action. Notwithstanding the foregoing, if a Seller Default occurs and Seller or such Related Seller has failed specific performance is not a legally available remedy to cure such default within ten (10) days of such noticePurchaser as a result thereof, then Purchaser shall be entitled at its option shall: (x) have the right to notify Seller receive a return of the election by Purchaser to terminate this AgreementXxxxxxx Money (including, whereupon Escrow Agent shall return without limitation, the Deposit to Purchaser Released Deposit); and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall y) be entitled to bring suit for specific performance(and Seller shall promptly reimburse Purchaser for) Purchaser’s Termination Costs (which reimbursement obligation shall survive the termination of this Agreement). The term “Termination Costs” shall mean those reasonable costs actually incurred by Purchaser in connection with its investigation and efforts to purchase the Property, inasmuch as including, without limitation, actual reasonable fees and costs of counsel and consultants, all of which Termination Costs shall be evidenced by written documentation reasonably acceptable to Seller, but in no event shall the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach Termination Costs payable by Seller of Seller’s obligations to convey the Property to Purchaser in accordance connection with the terms and conditions clause (A) of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten Section exceed Two Hundred Fifty Thousand Dollars (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”$250,000). For purposes The provisions of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 12.1 shall fully survive the expiration or earlier termination of this Agreement.
Appears in 1 contract
Seller’s Default. If Seller breaches any In the event of its representations, warranties, covenants and/or agreements hereunder or fails to consummate a default in the purchase and sale contemplated obligations herein taken by the Closing DateSeller, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any in the event of the Related Contractsfailure of a condition precedent set forth in this Agreement, with respect to the Property, Purchaser may, as its sole and if Purchaser exclusive remedy, either: (i) waive any unsatisfied conditions and proceed to Closing in. accordance with the terms and provisions hereof without reduction or abatement of the applicable Related Purchaser has notified Seller or such Related Purchase Price; (ii) terminate this Agreement by delivering written notice thereof to Seller of such default and Seller or such Related Seller has failed to cure such default within not less than ten (10) days of and an opportunity to cure such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to unsatisfied condition within such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice period no later than Time of the Essence Closing Date or the Adjourned Time of the Essence Closing Date, as the case may be, upon which termination the Down Payment shall be refunded to Purchaser and cure period, and provided that in the absence event of such failure a willful and intentional default by Seller, then Seller shall pay to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, all of the out-of-pocket due diligence costs and expenses incurred by Purchaser in connection with this Agreement, including reasonable attorney’s fees in an amount not to exceed $20,000.00 which return and payment shall operate to terminate this Agreement and release Seller and Purchaser from any and all liability hereunder, except those which are specifically stated herein to survive any termination hereof; (collectivelyiii) enforce specific performance of Seller‘s obligations hereunder; or (iv) by notice to Seller given on or before the Closing Date, extend the Closing Date for a period of up to thirty (30) days (the “Pursuit Costs”Closing Extension Period“), and the “Closing Date“ shall be moved to the last day of the Closing Extension Period. For purposes of this AgreementIf Purchaser so extends the Closing Date, a willful failure or default of then Seller is a failure or default which was within Seller’s knowledge and reasonable control may, but shall not be obligated to, cause said conditions to prevent. This be satisfied during the Closing Extension Period, If Seller does not cause said conditions to be satisfied during the Closing Extension Period, then Purchaser shall have the remedies set forth in Section 11.2 13(B)(i) through (iii) above except that the term “Closing“ shall fully survive the expiration or earlier termination of this Agreement.read “Extended Closing“
Appears in 1 contract
Samples: Purchase Agreement (American Realty Capital New York Recovery Reit Inc)
Seller’s Default. If In the event Buyer is not in default under this Agreement and Seller breaches any defaults with respect to the performance of one or more of its covenants, representations, warrantiesand/or obligations under this Agreement, covenants and/or agreements hereunder or fails Buyer shall be entitled, as its exclusive remedies, to consummate elect (i) to terminate this Agreement and have the purchase Deposit returned to it whereupon all rights, duties, liabilities and sale contemplated herein by responsibilities of Buyer and Seller shall become null and void, and the Closing Dateparties shall be released of any and all liability to each other except for those obligations which specifically survive Closing, (ii) to enforce specific performance of Seller's obligations under this Agreement, or if(iii) to xxx Seller for damages as to any default of any condition of this Agreement that survives the Closing. It is expressly provided, pursuant however, that except with regard to Section 5.2 abovea failure to close on the scheduled Closing Date in which case there shall be no cure, Buyer shall provide Seller with written notice of any Related default hereunder, which notice shall provide Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within with a ten (10) days business day grace period within which to cure any default of which notice has been given or, provided that Seller commences and proceeds diligently, in the event that such noticecure cannot be reasonably addressed or resolved within such ten (10) day period, then Purchaser Seller shall be entitled at its option have such time period as commercially reasonable to notify Seller cure a default of the election nature noticed to Seller by Purchaser Buyer, not to terminate exceed thirty (30) days. Buyer's termination pursuant to (i) of this Paragraph 18 shall also be deemed a termination of the Lakeview Agreement, whereupon and Escrow Agent shall return the Deposit Lakeview Deposit, plus accrued interest, if any, to Purchaser Lakeview Buyer, the Lakeview Agreement shall be null and neither party will have void and the parties shall be released of any further obligation and all liability to the each other hereunder, other than the except for those obligations which specifically survive termination of the Purchaser Lakeview Agreement. A default under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of shall also be deemed a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). AlternativelyLakeview Agreement, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election and Buyer shall be entitled to bring suit for specific performance, inasmuch as enforce all rights and remedies provided Buyer in the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller event of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that 's default in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Lakeview Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Homes for America Holdings Inc)
Seller’s Default. If Seller breaches any of its representationsExcept as otherwise provided herein, warranties, covenants and/or agreements hereunder or fails to consummate if the purchase and sale contemplated herein by the Closing Date, or if, pursuant this Agreement is not consummated by reason of Seller’s failure to Section 5.2 above, any Related perform all obligations and agreements to be performed by Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent Buyer’s sole and exclusive remedies shall return the Deposit be to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 either (provided Purchaser may only elect to i) terminate this Agreement because of a and receive back the Xxxxxxx Money and Deposit, or (ii) if Seller’s default under a Related Contract if is refusal to deliver the respective Related Purchasers have also terminated all the Related Contracts due to such default). AlternativelyDeed in accordance with this Agreement, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election then Buyer shall be entitled to bring suit specific performance of Seller’s obligations. Any action of the Buyer for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller performance of Seller’s obligations under this Agreement, if Buyer elects such remedy, must be filed within thirty (30) calendar days following the scheduled closing date, or Buyer shall be conclusively presumed to convey have elected the Property remedy of termination of this Agreement and return of the Xxxxxxx Money to Purchaser in accordance with the terms Buyer, and conditions to have waived, released and relinquished any right to seek specific performance of Seller’s obligations under this Agreement. In no event shall Purchaser be entitled If this Agreement is terminated by Buyer pursuant to monetary damages for a failure any right of Seller termination given to close hereunder, with the exception that Buyer in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectivelythe Xxxxxxx Money shall be promptly refunded to Buyer, the “Pursuit Costs”)but Seller shall not be liable to Buyer for any damages. For purposes Buyer expressly waives any and all other remedies of this AgreementBuyer, a willful failure whether at law, equity, contractual, or default of Seller is a failure or default which was within otherwise, including, but not limited to, actions for damages dues to Seller’s knowledge and reasonable control failure to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreementdeliver a buildable lot.
Appears in 1 contract
Samples: Purchase Agreement
Seller’s Default. If Seller breaches any (a) Purchaser shall have performed or tendered performance of all of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted obligations in all material respects under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return and the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement sale contemplated hereby is not consummated because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations in its obligation to convey sell the Property to Purchaser Membership Interests in accordance with the terms and conditions of this Agreement. In no event , or (b) Seller shall Purchaser be entitled to monetary damages otherwise materially default under this Agreement and such default shall continue for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day calendar days after receipt of written notice and cure periodthereof from Purchaser, and provided that in the absence of such no notice shall be required for a failure to close Purchaser would have been readytimely participate in Closing, willing and able to closethen, Purchaser may, as its sole and exclusive remedy at law or in equity, avail itself of one of the following: (x) terminate this Agreement by giving written notice thereof to Seller, in which event the entire Deposit will be returned to Purchaser, Seller shall be entitled to recover from Seller Purchaser’s reasonablereimburse Purchaser for such reasonable and actual, out-of-pocket due diligence pocket, third-party costs and expenses incurred by Purchaser in connection with the transaction contemplated by this Agreement, including including, but not limited to, Purchaser’s reasonable attorney’s fees and reasonable costs incurred by Purchaser in connection with its due diligence inspections of the Property, provided however that (collectivelyi) in no event shall Seller have any obligation to reimburse Purchaser for any costs incurred in connection with any efforts by Purchaser to obtain any financing for the acquisition of the Membership Interests, and (ii) Seller’s obligation to reimburse Purchaser for such costs and expenses shall not exceed One Hundred Thousand and 00/100 Dollars ($100,000.00), and the “Pursuit Costs”). For purposes parties shall have no further obligation to each other except for the applicable Surviving Obligations; (y) waive such default and consummate the transactions contemplated hereby in accordance with the terms of this Agreement; or (z) specifically enforce this Agreement. It is expressly acknowledged that the conveyance of the Membership Interests as contemplated by this Agreement will effectively transfer a one hundred percent (100%) ownership interest in the unique real property owned by the Owner to Purchaser, and accordingly, specific performance is an appropriate remedy to make available to Purchaser hereunder since the remedies available to Purchaser at law may be inadequate to make Purchaser whole in the event of a willful failure or default by Seller under this Agreement. As a condition precedent to Purchaser exercising any right to bring an action for specific performance as the result of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive default hereunder, Purchaser must commence such action within thirty (30) calendar days after the expiration or earlier termination of scheduled Closing Date under this Agreement. Purchaser agrees that its failure timely to commence such an action for specific performance within such thirty (30) calendar day period shall be deemed a waiver by it of its right to commence such an action as well as a waiver by it of any right it may have to file or record a notice of pendency of action or similar notice against any portion of the Property, and in such event, the provisions of subparagraph (x) above shall apply.
Appears in 1 contract
Samples: Membership Interests Purchase and Sale Agreement (CBRE Realty Finance Inc)
Seller’s Default. If Seller breaches If, as to any specific Property, (a) Buyer has demonstrated that it is fully ready and able to perform all of its representationsmaterial closing obligations (e.g., warrantiesable to deliver the necessary funds into escrow), covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any (b) all of the Related Contractsconditions precedent in Section 3.1(b)(ii), (iii) and (iv), if applicable to such affected Property, have been satisfied by Seller or waived by Seller in its sole discretion, and if Purchaser or the applicable Related Purchaser has notified (c) Seller or such Related Seller of such default and Seller or such Related Seller has failed shall refuse to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at perform its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the material closing obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively(e.g., in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations refusing to convey the Property to Purchaser Buyer at Closing), then Buyer's sole and exclusive remedy shall be either (i) to pursue an action for specific performance, provided, that notwithstanding anything to the contrary contained herein, Buyer's right to pursue an action for specific performance is expressly conditioned on Buyer not being in accordance default hereunder or (ii) to receive from Seller (x) a return of that portion of the Deposit allocated to the affected Property in the event Seller refuses to perform its material closing obligations with respect to such Property (in which case the terms and conditions term "Deposit" shall be deemed reduced by the amount returned to Buyer) plus (y) the allocated amount of this Agreement$2,500,000.00 as set forth on Exhibit O for such affected Property as liquidated damages. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with such liquidated damage amount, SELLER ACKNOWLEDGES THAT THE CLOSING OF THE SALE OF THE PROPERTIES TO BUYER ON THE TERMS AND CONDITIONS AND WITHIN THE TIME PERIOD SET FORTH IN THIS AGREEMENT, IS MATERIAL TO BUYER. SELLER ALSO ACKNOWLEDGES THAT SUBSTANTIAL DAMAGES WILL BE SUFFERED BY BUYER IF SUCH TRANSACTION IS NOT SO CONSUMMATED DUE TO SELLER'S DEFAULT UNDER THIS AGREEMENT. SELLER FURTHER ACKNOWLEDGES THAT, AS OF THE DATE OF THIS AGREEMENT, BUYER'S DAMAGES WOULD BE EXTREMELY DIFFICULT OR IMPOSSIBLE TO COMPUTE IN LIGHT OF THE UNPREDICTABLE STATE OF THE ECONOMY AND OF GOVERNMENTAL REGULATIONS, THE FLUCTUATING MARKET FOR REAL ESTATE AND REAL ESTATE LOANS OF ALL TYPES, AND OTHER FACTORS WHICH DIRECTLY AFFECT THE VALUE AND MARKETABILITY OF THE PROPERTIES. IN LIGHT OF THE FOREGOING AND ALL OF THE OTHER FACTS AND CIRCUMSTANCES SURROUNDING THIS TRANSACTION, AND FOLLOWING NEGOTIATIONS BETWEEN THE PARTIES, SELLER AND BUYER AGREE THAT THE ALLOCATED AMOUNT OF $2,500,000.00 AS SET FORTH ON EXHIBIT O FOR THE AFFECTED PROPERTY REPRESENTS A REASONABLE ESTIMATE OF THE DAMAGES WHICH BUYER WOULD SUFFER BY REASON OF SELLER'S DEFAULT HEREUNDER IF BUYER DOES NOT ELECT TO ENFORCE SPECIFIC PERFORMANCE. ACCORDINGLY, SELLER AND BUYER HEREBY AGREE THAT, IN THE EVENT OF SUCH DEFAULT BY SELLER UNDER THIS AGREEMENT AS TO A SPECIFIC PROPERTY, BUYER MAY TERMINATE THIS AGREEMENT AS TO SUCH AFFECTED PROPERTY BY GIVING NOTICE TO SELLER AND TITLE COMPANY AND IN THE EVENT OF SUCH TERMINATION, BUYER SHALL RECEIVE A REFUND OF THAT PORTION OF THE DEPOSIT ALLOCATED TO THE AFFECTED PROPERTY (AND THE TERM "DEPOSIT" SHALL BE DEEMED REDUCED BY THE AMOUNT RETURNED TO BUYER) AND ALSO RECEIVE FROM SELLER THE ALLOCATED AMOUNT OF $2,500,000.00 AS SET FORTH ON EXHIBIT O FOR THE AFFECTED PROPERTY AS LIQUIDATED DAMAGES. Buyer's Initials: Nothing contained in this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller Section 5.2 is a failure or default which was within Seller’s knowledge intended to limit Buyer's rights under Sections 7.2 and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination 7.8 of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Burnham Pacific Properties Inc)
Seller’s Default. If any Seller breaches any of its representations, warranties, covenants and/or agreements hereunder or fails to consummate convey its Property to Buyer in accordance with the purchase terms of this Agreement, or if any Seller otherwise fails to perform, in any material respect its obligations as and sale contemplated herein by when required hereunder (subject to a five Business Day cure period for any interim failure prior to the Closing Date, or ifif applicable such lesser period as remains prior to the Closing Date), pursuant then Buyer shall have the right to Section 5.2 above, exercise any Related Seller has defaulted under any one of the Related Contractsfollowing as Buyer’s sole and exclusive remedy:
(a) proceed to Closing without any reduction in or set-off against the Purchase Price, in which case Buyer shall be deemed to have waived such Seller’s default in performing its obligations and if Purchaser or the applicable Related Purchaser has notified Seller covenants under this Agreement or such Related Seller Seller’s incorrect representations and warranties; or
(b) Terminate this Agreement by giving Sellers written notice of such default and Seller or such Related Seller has failed election prior to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller the consummation of the election by Purchaser to terminate this Agreement, Closing whereupon (i) Escrow Agent shall promptly return the Deposit to Purchaser and neither party will have any further obligation to the other hereunderBuyer, other than the obligations (ii) Sellers shall reimburse Buyer, upon receipt by Sellers of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternativelyreasonable evidence thereof, in the event Seller shall willfully fail to close as required hereunder, Purchaser at for its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and third-party expenses incurred related to the Transaction contemplated by this Agreement (not to exceed $500,000 in connection with the aggregate), (iii) no party to this Agreement shall thereafter have any further rights or liabilities under this Agreement, including reasonable attorney’s fees except, however, that the parties shall remain obligated with respect to the provisions herein which specifically survive Termination; or
(collectively, c) seek specific performance on the “Pursuit Costs”). For purposes part of Sellers under the terms of this Agreement, ; provided such action seeking specific performance is initiated in a willful failure court of competent jurisdiction within sixty (60) days after the scheduled Closing Date. Failure to file a suit for specific performance within such sixty (60) day period shall be deemed a waiver of such remedy as well as a waiver by it of any right it may have to file or default record a notice of Seller is a failure lis pendens or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive notice of pendency of action or similar notice against any portion of the expiration or earlier termination of this AgreementProperty.
Appears in 1 contract
Samples: Hotel Purchase and Sale Agreement (Starwood Real Estate Income Trust, Inc.)
Seller’s Default. If this transaction shall not be closed because of default of Seller, the Deposit shall be delivered to Buyer on demand, plus Seller breaches shall pay to Buyer on demand an additional sum equal to $10,000 (such sum defined as the "Buyer's Damages"), as agreed and liquidated damages, it being acknowledged by Buyer and Seller that in such event Buyer will suffer substantial damages but such damages are incapable of exact ascertainment, provided however, that any liability of its representations, warranties, covenants and/or agreements hereunder Seller under this Agreement shall be limited to the funds or fails to consummate other assets available in the purchase receivership estate created under the Receivership Order and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any from no other source. After delivery of the Related ContractsDeposit and payment of the Buyer's Damages to Buyer, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser this Agreement shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser null and void and neither party will Seller nor Buyer shall have any further obligation rights or obligations hereunder except that Buyer shall remain obligated pursuant to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreementprovisions hereof which survive termination. In no event shall Purchaser Buyer be entitled to monetary damages for a failure except as specifically set forth herein. SELLER AND BUYER ACKNOWLEDGE THAT BUYER’S DAMAGES WOULD BE DIFFICULT TO DETERMINE, AND THAT THE BUYER'S DAMAGES IS A REASONABLE ESTIMATE OF BUYER’S DAMAGES RESULTING FROM A DEFAULT BY SELLER IN ITS OBLIGATION TO SELL THE PROPERTY. SELLER AND BUYER FURTHER AGREE THAT THIS SECTION 10.2 IS INTENDED TO AND DOES LIQUIDATE THE AMOUNT OF DAMAGES DUE BUYER, AND SHALL BE BUYER’S EXCLUSIVE REMEDY AGAINST SELLER, BOTH AT LAW AND IN 16 EQUITY, ARISING FROM OR RELATED TO A BREACH BY SELLER OF ITS OBLIGATION TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AND BUYER’S RIGHT TO RECOVER ITS REASONABLE ATTORNEYS’ FEES AND EXPENSES. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO BUYER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. _________________________ _________________________ Buyer Seller 10.3 No Obligation of Seller after Closing. Buyer expressly acknowledges and agrees that Seller has no obligations with respect to close hereunderthe Property that survive Closing, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”)except as specifically set forth herein. For purposes The provisions of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreement.Closing. ARTICLE XI
Appears in 1 contract
Seller’s Default. If Seller breaches fails to consummate this Agreement in accordance with its terms (other than by reason of (i) Buyer's breach of any of its representations, warranties, covenants and/or agreements hereunder representations or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under warranties contained in this Agreement; (ii) Buyer's continuing default of any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within its covenants hereunder after ten (10) days prior written notice of such noticedefault; (iii) a failure of any condition to Seller's obligation to sell the Property to be satisfied; (iv) a termination of this Agreement by Seller or Buyer pursuant to a right to do so expressly provided for in this Agreement, then Purchaser except by reason of a default by either party; or (v) failure by Buyer to deliver the items required under Section 9.2), Buyer may make written demand on Seller to so perform. If Seller fails to comply with Buyer's written demand within five (5) days after receipt of such written demand for performance, Buyer shall be entitled at its option have the exclusive right to notify Seller (i) waive such default, (ii) seek specific performance of the election by Purchaser to Seller's obligations under this Agreement and, as an alternative remedy, all damages resulting from Seller's breach; or (iii) terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations obtain a refund of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall Xxxxxxx Money and be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach reimbursed by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunderits actual, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, verifiable out-of-pocket due diligence costs expenses plus attorneys' fees and expenses incurred to obtain same. Seller agrees that the Property is unique and that damages for failure by Seller to consummate the transaction contemplated by this Agreement will be impracticable and extremely difficult to determine. Therefore, in connection with this Agreementthe event that Seller fails or refuses to consummate the sale of the Property to Buyer and Buyer seeks specific performance, including reasonable attorney’s fees (collectivelySeller specifically agrees that the remedies of specific performance are appropriate remedies for Buyer, the “Pursuit Costs”)and Seller waives and agrees not to assert any claim or defense that specific performance is not an appropriate remedy for Buyer. For purposes of this AgreementUNDER NO CIRCUMSTANCES MAY BUYER SEEK OR BE ENTITLED TO RECOVER ANY PUNITIVE DAMAGES, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this AgreementALL OF WHICH BUYER SPECIFICALLY WAIVES, FROM SELLER FOR ANY BREACH BY SELLER OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR OF ANY REPRESENTATION, WARRANTY OR COVENANT OF SELLER HEREUNDER.
Appears in 1 contract
Seller’s Default. 6.2.1 If prior to Closing any Seller breaches fails to perform any of its representations, warranties, covenants and/or agreements material obligations or is otherwise in material default hereunder or fails to consummate willfully causes the purchase and sale contemplated herein by the Closing Date, or if, failure of a condition precedent pursuant to Section 5.2 above5.4 hereof (each, any Related Seller has defaulted under any of the Related Contractsa “Pre-Closing Default, and if Purchaser collectively, the Pre-Closing Defaults”), after Buyer has performed or tendered performance of all of its material obligations in accordance with this Agreement, then, provided that Buyer shall have delivered notice of such Pre-Closing Default to the Sellers, and the applicable Related Purchaser has notified Seller shall not have remedied or cured such Related Seller of such default and Seller or such Related Seller has failed to cure such default Pre-Closing Default within ten (10) days Business Days after receipt of such noticenotice (or, then Purchaser if such Seller is not reasonably able to effectuate such remedy or cure within such ten (10) Business Day period, such longer period, not to exceed thirty (30) days in the aggregate for all such material defaults), in which event the Closing Date shall be entitled at its option automatically extended (without the need for any action on the part of Buyer or the Sellers) to notify Seller the Business Day after the earlier of the election date such Seller remedies or cures such material default or the expiration of such ten (10) Business Day (or longer as aforesaid period), Buyer shall have the right by Purchaser written notice to terminate the Sellers at the Buyer’s sole option and by written notice to Buyer, to elect any or all of the following:
(a) Waive such Pre-Closing Default and proceed to the Closing with no reduction in the Purchase Price and tender the actual Purchase Price to Sellers; provided, however, that this provision will not limit (other than with respect to such Pre-Closing Default for which Buyer shall be deemed to have waived all of Sellers’ obligations and Buyer’s right and remedies with respect thereto) Buyer’s right to receive reimbursement for attorney’s fees subject and pursuant to Section 9.8 below in connection with any legal proceedings instituted by any party or Escrow Agent with respect to the enforcement of this Agreement, whereupon Escrow Agent shall return nor waive or affect each Seller’s indemnity obligations under this Agreement or Buyer’s rights to enforce those indemnity obligations, nor waive or affect any of the Deposit Sellers’ other obligations under this Agreement to Purchaser and neither party will have any further obligation be performed after the Closing or Buyer’s rights to enforce those obligations.
(b) Subject to the provisions of this Section 6.2, exercise any of its other hereunderrights or remedies Buyer may have at law or in equity, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit including without limitation an action for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law performance to compensate fully Purchaser for a breach by cause each Seller of Seller’s obligations to convey the Property to Purchaser in accordance with Buyer pursuant to the terms and conditions of this Agreement; provided, however, the Sellers shall not be liable for any consequential or punitive damages under this Agreement.
(c) Terminate this Agreement by notice to the Sellers and Escrow Agent to that effect, in which event (i) this Agreement shall terminate; (ii) the Deposit (and any and all interest thereon) shall be returned and paid to Buyer; (iii) subject to the provisions of Section 9.23, the Sellers shall reimburse Buyer for its actually incurred out of pocket expenses (including without limitation attorneys’ fees) in connection with this Agreement (which obligation of the Sellers shall survive such termination of this Agreement); and (iv) other than as set forth in clause (iii) above, the Sellers and Buyer shall have no further obligations to each other under this Agreement except those provisions which expressly survive the termination of this Agreement. Notwithstanding the foregoing, a breach by a Seller of a representation or warranty that Buyer had actual knowledge of prior to two (2) Business Days prior to the end of the Due Diligence Period (each, a “DDP Breach”) shall result in Buyer being deemed to have waived any remedies hereunder with respect thereto and for which Sellers shall have no liability or obligation under this Agreement, at law or in equity; except that, notwithstanding anything in this Agreement to the contrary, subject to the provisions of Section 9.23, if Buyer does not deliver an Approval Notice to Sellers and Escrow Agent in accordance with this Agreement, the Sellers shall, provided Buyer gives Sellers written notice of the DDP Breach within two (2) Business Days after the end of the Due Diligence Period (and such DDP Breach was material), reimburse Buyer for its actually incurred out of pocket expenses (including without limitation attorneys’ fees) in connection with this Agreement (which obligation of the Sellers shall survive termination of this Agreement), to the extent such expenses are incurred on or prior to the date of such actual knowledge of Buyer. Notwithstanding anything in this Agreement to the contrary, with respect to the Purchase Price, Buyer shall be deemed to have performed or tendered performance in accordance with this Section 6.2.1 by funding that net cash portion of the Purchase Price that would have been owed by Buyer (excluding any amount that would be credited towards the Purchase Price pursuant to the Loan Assumption) into a separate escrow account with the Escrow Agent. Such separate escrow account shall be wholly controlled by Buyer and may be withdrawn by Buyer, in Buyer’s sole discretion, at any time after funding, provided that Buyer’s withdrawal of such funds shall not be deemed to relieve Buyer of its obligations to proceed to Closing and tender the actual Purchase Price to the extent expressly provided in this Agreement.
6.2.2 At Closing, Sellers shall deposit $300,000 in the aggregate (the “Post-Closing Escrow Amount”) with Escrow Agent as security for Sellers’ breach of any representation and warranty contained in any Representation Documents that expressly survives Closing (other than a breach of any representation or warranty that constitutes a Pre-Closing Default that Buyer has actual knowledge of pre-Closing (a “PCD-PC Breach”); such breach of any such representation and warranty other than a PCD-PC Breach being referred to herein as an “Actionable Breach”). Such security amount to be held by Escrow Agent in an insured (up to $250,000), interest-bearing account at First American Trust FSB with interest accruing for the benefit of the party entitled to the monies. In no the event Buyer believes, after Closing, that there is an Actionable Breach, then Buyer shall, prior to the end of the Survival Period, provide Sellers and Escrow Agent with a written notice (the “R&W Default Notice”) alleging that Sellers are in breach of a representation or warranty and specifying in reasonable detail the nature of such breach. Buyer shall Purchaser allow Sellers thirty (30) days after Sellers’ receipt of the R&W Default Notice to cure any bona-fide breach or if such bona-fide breach cannot be cured within such thirty (30) day period, and Sellers notify Buyer it wishes to extend its cure period (the “Cure Extension Notice”), such additional reasonable period of time as is required to cure the same (not to exceed sixty (60) days in the aggregate) so long as such cure has been commenced within such thirty (30) day period and is being diligently pursued to completion. If Sellers fail to cure such breach after written notice thereof, Buyer’s sole remedy shall be to commence a legal proceeding against Sellers alleging that Sellers are in breach of such representation or warranty and that Buyer shall have suffered actual damages, or is reasonably likely to suffer actual damages in the future, as a result thereof (a “Proceeding”), which Proceeding must be commenced, if at all, within ninety (90) days after the expiration of the Survival Period. If Buyer shall have timely commenced a Proceeding and a court of competent jurisdiction shall, pursuant to a final unappealable order in connection with such Proceeding, determine that (A) there was an Actionable Breach, (B) Sellers were in breach of the applicable representation or warranty as of Closing, and (C) Buyer suffered actual damages, or is reasonably likely to suffer actual damages in the future, by reason of such breach, (the immediately foregoing clauses (A), (B), and (C) being known collectively as a “Default Condition”), then Buyer shall, subject to the limitations provided in Section 6.2.3 below, be entitled to monetary receive an amount equal to the actual damages for suffered or the damages reasonably likely to be suffered in the future, including any costs and expenses of Buyer in connection with such Proceeding (including without limitation reasonable attorneys fees). Any such actual damages shall be paid by (x) Sellers directly within thirty (30) days following the entry of such final order and delivery of a failure copy thereof to Sellers and the Escrow Agent, or (y) Escrow Agent to the extent Sellers have failed to timely pay such actual damages and to the extent Escrow Agent is then holding proceeds pursuant to this Agreement. In the event (i) Escrow Agent does not timely receive an R&W Default Notice before the end of the Survival Period, (ii) receives a timely R&W Default Notice with subsequent evidence from Sellers and Buyer that the underlying default has been cured or settled, (iii) receives a timely R&W Default Notice but Seller notifies Escrow Agent that Buyer has failed to close hereundertimely commence a Proceeding with respect thereto, with the exception or (iv) Escrow Agent receives a timely R&W Default Notice and evidence satisfactory to Escrow Agent that a Proceeding has been timely commenced, then Escrow Agent, shall, (a) in the case of (i) above, return the proceeds being held under this Agreement to Sellers promptly following the end of the Survival Period, (b) in the case of (ii) above, return the proceeds being held under this Agreement to Sellers promptly after written consent from Sellers and Buyer acknowledging that the underlying defect has been cured or settled, provided that the Survival Period has expired, (c) in the case of (iii) above, unless Buyer is able to provide evidence reasonably satisfactory to Escrow Agent that a willful failure of Seller Proceeding was timely commenced, return the proceeds being held under this Agreement to close hereunder Sellers promptly after the foregoing ten date that is ninety (1090) day notice and cure perioddays after the end of the Survival Period, and provided that or (d) in the absence case of (iv) above, return any remaining portion of the Post-Closing Escrow Amount to Sellers promptly after issuance of the final order if it is determined that Sellers are not liable, promptly after payment of the actual damages by Sellers if Sellers are liable, or promptly after receipt by Escrow Agent of evidence satisfactory to it that payment to Buyer if Escrow Agent is required to pay such failure actual damages pursuant to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreementterms hereof.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Grubb & Ellis Healthcare REIT II, Inc.)
Seller’s Default. If In the event that the Seller breaches any does not tender conveyance of its representations, warranties, covenants and/or agreements hereunder or fails title to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related ContractsProperty as provided in this Agreement, and if Purchaser or the applicable Related Purchaser has notified Seller or any such Related Seller of such default and Seller or such Related Seller has failed to cure such default failure is not cured within ten thirty (1030) days of such noticeafter written demand by the Buyer, then Purchaser shall be entitled then, as Buyer’s sole and exclusive remedy, this Agreement may, at its the option to notify Seller of the election Buyer (in its sole and absolute discretion), be terminated by Purchaser written notice thereof to the Seller. In the event of any such termination by Buyer, or in the event the Close of Escrow and the consummation of the transaction herein contemplated does not otherwise occur solely by reason of a default of Seller, Buyer shall have, as its sole and exclusive remedy, the right to either (a) terminate this AgreementAgreement upon written notice to Seller and Escrow Agent, whereupon Escrow Agent and any such termination under this clause
(a) shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect operate to terminate this Agreement because and waive all rights and remedies of Buyer under clause (b) below, and all other rights and remedies of Buyer, and release Seller from any and all other liability under this Agreement; or (b) to xxx Seller for specific performance without the right to any damages or other relief whatsoever; provided that any suit for specific performance must be filed in a default under a Related Contract if court of competent jurisdiction within seventy-five (75) days after the respective Related Purchasers scheduled date for the Close of Escrow, and Buyer shall only have also terminated all the Related Contracts due right to xxx for specific performance during such default). Alternatively, 75-day period in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of the Close of Escrow to occur solely as a result of an uncured material default by Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day beyond all notice and cure periodperiods. If Buyer timely files a proper specific performance action in a court of competent jurisdiction, and provided that if Buyer timely serves notice on Seller seeking specific performance in accordance herewith, Buyer shall also have the absence right to record a lis pendens or a notice of such failure to close Purchaser would have been readypendency of action against the Property, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred but only in connection with this Agreementthe timely filing hereunder of such specific performance action, including reasonable attorney’s fees and not otherwise under any circumstances. If Buyer does not timely file and serve a specific performance action pursuant hereto, then Buyer shall be deemed to have elected the remedy set forth in clause (collectively, the “Pursuit Costs”)a) above. For purposes The provisions of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 paragraph shall fully survive the expiration or earlier termination Close of this AgreementEscrow and the execution and delivery of the Grant Deed.
Appears in 1 contract
Seller’s Default. If Seller breaches any of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Datedoes not occur as a result of Seller’s default hereunder, or ifthen, provided Buyer is not in default hereunder, Buyer may, at its sole election, proceed with one of the following mutually exclusive alternatives:
(i) proceed with the Closing with no reduction in the Purchase Price; provided, however, that in proceeding with the Closing pursuant to Section 5.2 abovethis subparagraph (i), Buyer shall be deemed to have waived any Related default of Seller of which Buyer has defaulted under any of actual knowledge prior to the Related ContractsClosing, and if Purchaser or the applicable Related Purchaser has notified unless Buyer gives Seller or such Related Seller written notice of such default prior to the Closing, which notice expressly states that Buyer intends to preserve a post-Closing claim to such default; and provided, further, that: (1) in no event shall Seller’s liability to Buyer for any pre-Closing default not waived or deemed waived by Buyer (including, but not limited to, any breach of any representation or warranty under this Agreement or pursuant to Seller’s Closing Certification, as described in Section 4.5 above) exceed, in the aggregate, Six Hundred Twenty-Five Thousand Dollars ($625,000.00); and (2) no claim for any pre-Closing default of Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option valid unless suit thereon is filed in a court of competent jurisdiction prior to notify Seller the expiration of the election by Purchaser to Survival Period;
(ii) terminate this Agreement, whereupon Escrow Agent shall return the Deposit shall be returned and paid to Purchaser Buyer, and neither party will shall have any further liability or obligation to the other hereunder, other than except for provisions of this Agreement which expressly state that they shall survive the obligations termination of this Agreement; provided, however, that if such default is of a nature such that it can be cured on or before the Purchaser under Section 4.1 (provided Purchaser may only elect Closing Date, Buyer shall give Seller written notice of such default prior to exercising its right to terminate this Agreement because pursuant to this subparagraph (ii), and Buyer may not exercise such termination right unless Seller fails to cure such default on or before the Closing Date; or
(iii) file in any court of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit competent jurisdiction an action for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law performance to compensate fully Purchaser for a breach by cause Seller of Seller’s obligations to convey the Property to Purchaser in accordance with Buyer pursuant to the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure Agreement and recovery of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, actual third party out-of-pocket due diligence costs and expenses incurred by Buyer in connection with this Agreement, including reasonable attorney’s fees Agreement up to an amount not to exceed in the aggregate Seventy-Five Thousand Dollars (collectively, the “Pursuit Costs”$75,000.00). For purposes of this Agreement, a willful failure or default of ; but Buyer shall not be entitled to recover monetary damages from Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreementin connection with such default.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Simpson Manufacturing Co Inc /Ca/)
Seller’s Default. If In the event of a material default by Seller breaches any of its representationsmaterial obligations under this Agreement that results in a material adverse effect to the Property, warrantiesthe Companion Contract Property, covenants and/or agreements hereunder or fails the Acquired Companies and the Fee Owners, as a whole, which default is not cured by Seller within fifteen (15) days following written notice thereof from Buyer to consummate the purchase Seller, then Buyer may, as its sole and sale contemplated herein exclusive remedy, either (i) terminate this Agreement by the Closing Datedelivery of a written notice of termination to Seller, or if, whereupon subject to Seller’s rights pursuant to Section 5.2 above5(b) and the terms, any Related Seller has defaulted under any conditions and procedures of the Related ContractsEscrow Agreement, and the Deposit (including the Non-Refundable Deposit) shall be promptly returned to Buyer and, if Purchaser or such material default is due to the applicable Related Purchaser has notified willful default (such as the conveyance of the Property by Seller or such Related Seller to a third party other than Buyer where the remedy of such specific performance is unavailable), but in no event due to failure of any condition to Closing not caused by a default and Seller or such Related Seller has failed to cure such default within ten (10) days of such noticeby Seller, then Purchaser Seller shall be entitled at its option to notify Seller also reimburse Buyer for the documented, reasonable, unaffiliated third party, out of pocket costs and expenses (but expressly excluding any consequential, special, incidental or punitive damages) actually incurred by Buyer in the election by Purchaser to terminate negotiation of this Agreement, whereupon Escrow Agent shall return conducting its diligence activities and otherwise in preparation for the Deposit to Purchaser and neither party will have any further obligation Closing up to the other hereunder, other than the obligations amount of the Purchaser under Section 4.1 ONE MILLION TWO HUNDRED FIFTY THOUSAND AND NO/DOLLARS (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, $1,250,000.00) in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit aggregate for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of all such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with under this AgreementAgreement and the Companion Contract, including reasonable attorney’s fees without duplication (collectively, the “Pursuit Costs”), or (ii) continue this Agreement and bring an action for specific performance hereunder, provided appropriate legal proceedings are promptly commenced by Buyer after the occurrence of Seller’s default and prosecuted in good faith with diligence and continuity. For purposes Notwithstanding anything herein to the contrary, in no event shall Buyer have the right to (and Buyer hereby waives any right to) file or assert any lis pendens against any Parcel of the Real Property. In the event of any termination of this entire Agreement by Buyer pursuant to this Section 14(a), then, upon the return of the Deposit (including the Non-Refundable Deposit) to Buyer and, if applicable, reimbursement to Buyer of its Pursuit Costs, this Agreement shall be and become null and void, neither party shall have any further rights or obligations hereunder (except for the obligations of Buyer and Seller that expressly survive termination as set forth in this Agreement, which shall survive the cancellation of this Agreement). If the applicable material default pertains to a matter or condition that relates solely to one or more particular Parcels, a willful failure then Buyer shall have the right, as its sole and exclusive remedy, to either (i) proceed to Closing with respect to the affected Parcel(s) without any reduction in Purchase Price, or default of Seller is a failure (ii) designate the affected Parcel or default which was within Parcels as Excluded Parcels (and such Parcels shall not be subject to the Excluded Parcel Cap), and in such event, Section 5(c) shall apply. Nothing set forth in this Section 14(b) shall be deemed to limit Seller’s knowledge and reasonable control liability for Seller’s indemnification obligations hereunder, any attorney’s fees payable by Seller in accordance with Section 28(a), or in connection with fraud claims, such obligations to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Vinebrook Homes Trust, Inc.)
Seller’s Default. If Seller breaches If, at or any of its representationstime prior to Closing, warrantiesSellers, US Parties or CLP Canada Nominee, Inc. (“Share Seller”) fail to perform in any material respect their covenants and/or agreements hereunder or fails to consummate obligations under this Agreement, the purchase US Companion Contract or the Share Purchase Agreement, which breach or default is not caused by a Purchaser Default and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller no material Purchaser’s Default has defaulted under any of the Related Contractsoccurred which remains uncured (a “Sellers’ Default”), and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed Sellers, US Parties and/or Share Seller, as applicable, fail to cure such default Sellers’ Default within ten (10) days Business Days of such noticereceiving Notice from Purchaser of same, then Purchaser shall be entitled at may elect as its option to notify Seller sole and exclusive remedy one (1) of the election by Purchaser to following described remedies: (a) terminate this Agreement by providing Notice to Sellers, and the Parties shall have no further rights or obligations under this Agreement except those rights and obligations which expressly survive such termination; or (b) waive such default, covenant, or obligation without any reduction in or setoff against the Purchase Price and proceed to Closing pursuant to this Agreement, whereupon Escrow Agent shall return . In the Deposit to event Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect chooses to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunderaccordance with Section 10.1(a) hereof, Purchaser at its shall receive a full refund of the Deposit without deduction or set-off. If Purchaser fails to make an election of remedies as set forth herein then it shall be entitled deemed that Purchaser has elected option (a) above and this Agreement shall be terminated. If Purchaser elects option (b) above and Sellers refuse to bring suit proceed to Closing, then Purchaser may enforce its rights by pursuing an action for specific performance, inasmuch as if said action is filed within forty-five (45) days of the parties recognize Closing Date. If Purchaser elects option (b) above and acknowledge that Sellers render consummation of the Property is uniquetransaction contemplated under this Agreement impossible by conveying any of the Assets to a third party then Purchaser may seek any and all actual damages available to Purchaser, and that there is no adequate remedy at law without effect being given to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller any limitations on Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure recovery or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreementremedies as may be set forth herein.
Appears in 1 contract
Samples: Asset Purchase Agreement (CNL Lifestyle Properties Inc)
Seller’s Default. If (a) If, prior to the Closing, Buyer or Seller breaches should learn, discover or become aware that a representation or warranty of Seller set forth herein is incorrect or untrue in any material respect (except to the extent due to any COVID-19 Restrictions) or of its representationsany material breach of a covenant by Seller hereunder (collectively, warrantiesa “Seller Breach”), covenants and/or agreements hereunder then the party who has learned, discovered or fails become aware of such Seller Breach shall promptly give written notice thereof to consummate the purchase and sale contemplated herein other party. Buyer shall, within five (5) days of becoming aware of any Seller Breach, have the right to object to such Seller Breach by the Closing Datewritten notice to Seller (a “Buyer Notice of Default”), or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any which Buyer Notice of Default shall include a description of the Related Contracts, Seller Breach and if Purchaser or Buyer’s opinion of the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed reasonable steps necessary to cure such default Seller Breach (and the Closing Date shall be extended as necessary to provide Buyer such five (5) day notice period and to provide Seller a five (5)-day response period as provided below). If Buyer timely sends a Buyer Notice of Default with respect to a Seller Breach, then Seller may, within ten five (105) days after receipt of such Buyer Notice of Default, elect in writing to remedy such Seller Breach, and Seller may extend the Closing up to thirty (30) days to complete such remedy if necessary, provided, however in the event that Seller is prevented from curing such Seller Breach due to any COVID-19 Restrictions, then Seller shall have the right to extend Closing to the date that is thirty (30) days after the applicable COVID-19 Restrictions shall have ceased. If Seller does not elect to remedy such Seller Breach within such five (5) days after receipt of the Buyer Notice of Default, then Buyer may, within five (5) days after the expiration of such five (5) day period, as its sole and exclusive remedy, elect in writing to either (i) terminate this Agreement as more particularly provided in Section 8.5(b) below or (ii) proceed with the Closing. If Buyer fails to timely send a Buyer Notice of Default within five (5) days of becoming aware of any Seller Breach, or Buyer otherwise elects to proceed with the Closing despite being aware of any such noticeSeller Breach, or Seller remedies the Seller Breach, then Purchaser Seller’s representation and warranties herein shall be entitled at its option qualified by such Seller Breach, Seller shall have no obligation to notify Buyer for such Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have Breach or any further obligation obligations to cure such Seller Breach, and the Closing shall proceed as scheduled with no offset or deduction from the Purchase Price. Notwithstanding anything to the other hereundercontrary herein, other than the obligations of the Purchaser under Section 4.1 (parties acknowledge and agree that there will be no notice or cure period as provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, herein in the event Seller shall willfully fail fails to timely close as required hereunderby this Agreement.
(b) IF THE SALE OF THE PROPERTY IS NOT CONSUMMATED DUE TO SELLER’S MATERIAL DEFAULT HEREUNDER, Purchaser at its election THEN NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, BUYER SHALL BE ENTITLED, AS ITS SOLE REMEDY AT LAW OR IN EQUITY, EITHER (A) TO TERMINATE THIS AGREEMENT AS PROVIDED IN SECTION 8.5(A) ABOVE AND RECEIVE THE RETURN OF THE DEPOSIT AND RECOVER FROM SELLER A REIMBURSEMENT OF BUYER’S ACTUAL OUT OF POCKET COSTS INCURRED WITH RESPECT TO THIS TRANSACTION NOT TO EXCEED AN AGGREGATE OF $100,000 (“BUYER’S OUT OF POCKET COSTS”) FOR ALL CLAIMS TIMELY ASSERTED AGAINST SELLER UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR (B) IF SUCH TERMINATION IS DUE TO SELLER’S FAILURE TO DELIVER THE DEED AT CLOSING OR OTHERWISE CONSUMMATE THE SALE FO THE PROPERTY TO BUYER, TO ENFORCE SPECIFIC PERFORMANCE OF THIS AGREEMENT. BUYER SHALL BE DEEMED TO HAVE ELECTED TO TERMINATE THIS AGREEMENT AND RECEIVE BACK THE DEPOSIT AND BUYER’S OUT OF POCKET COSTS IF BUYER FAILS TO FILE SUIT FOR SPECIFIC PERFORMANCE AGAINST SELLER IN A COURT OF COMPETENT JURISDICTION, ON OR BEFORE THE DATE WHICH IS THIRTY (30) DAYS FOLLOWING THE DATE UPON WHICH CLOSING WAS TO HAVE OCCURRED. AS A MATERIAL CONSIDERATION FOR SELLER ENTERING INTO THIS AGREEMENT, BUYER EXPRESSLY WAIVES FOR ANY DEFAULT BY SELLER (A) ANY RIGHT UNDER STATE OR FEDERAL STATUTE, OR AT COMMON LAW OR OTHERWISE TO RECORD OR FILE A LIS PENDENS OR A NOTICE OF PENDENCY OF ACTION OR SIMILAR NOTICE AGAINST ALL OR ANY PORTION OF THE PROPERTY UNLESS AND UNTIL BUYER HAS ELECTED TO SEEK SPECIFIC PERFORMANCE OF THIS AGREEMENT AND HAS FILED AN ACTION SEEKING SUCH REMEDY, (B) ANY RIGHT TO SEEK DAMAGES IN THE EVENT OF SELLER’S DEFAULT HEREUNDER, AND (C) ITS RIGHT TO BRING ANY ACTION THAT WOULD IN ANY WAY AFFECT TITLE TO OR RIGHT OF POSSESSION OF ALL OR ANY PORTION OF THE PROPERTY. BUYER ACKNOWLEDGES AND AGREES THAT PRIOR TO THE CLOSING, BUYER SHALL NOT HAVE ANY RIGHT, TITLE OR INTEREST IN AND TO THE PROPERTY OR ANY PORTION THEREOF UNLESS AND UNTIL BUYER HAS ELECTED TO SEEK SPECIFIC PERFORMANCE OF THIS AGREEMENT AND HAS FILED AN ACTION SEEKING SUCH REMEDY. WITHOUT LIMITATION OF THE FOREGOING, THE DEPOSIT SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES PURSUANT TO SECTION 64.04.005 OF THE REVISED CODE OF WASHINGTON. BUYER HEREBY EVIDENCES ITS SPECIFIC AGREEMENT TO THE TERMS OF THIS WAIVER BY PLACING ITS SIGNATURE OR INITIALS IN THE SPACE PROVIDED HEREINAFTER.
(c) Notwithstanding anything contained herein to the contrary, in no event shall be entitled Buyer have any right to bring suit for specific performanceany suit, inasmuch as action, claim or proceeding against Seller with respect to this Agreement if the parties recognize and acknowledge amount in controversy does not exceed $15,000 in the aggregate (after which liability shall commence at $0.01 such that the floor does not act as a deductible). In the event that the sale of the Property to Buyer is uniqueconsummated, and that there is no adequate remedy at law then Seller’s aggregate liability with respect to compensate fully Purchaser for a any breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure representations and/or warranties of Seller to close hereunder, with the exception that contained in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice this Agreement or any other document executed and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred delivered in connection with this Agreement, including reasonable attorney’s fees herewith shall not exceed one percent (collectively, 1%) of the Purchase Price (the “Pursuit CostsSeller Liability Cap”). For purposes Any action, suit or proceeding brought by Buyer against Seller arising from or related to this Agreement must be commenced and served, if at all, on or before the date which is nine (9) months after the Closing Date (the “Outside Date”). Subject to the limits of this AgreementSection 8.5, a willful failure or default the obligations of Seller are intended to be binding only on the Seller’s interest in the Property (in the event this Agreement is terminated) or Seller’s net proceeds from the sale of the Property (if the Closing occurs) and the obligations of Seller shall not be personally binding upon, nor shall any claim or action be asserted or filed against, nor any resort be had to, the private properties of any of its members, partners, trustees, officers, directors or shareholders, or the general partners, trustees, beneficiaries, managers, officers, directors or shareholders thereof, or any employees or agents of Seller. Seller shall maintain a failure tangible net worth of not less than the amount of the Seller Liability Cap through the later to occur of: (i) the Outside Date or default (ii) the final resolution (including any applicable appeals) of any action, suit or proceeding brought by Buyer against Seller arising from or related to this Agreement which was within Seller’s knowledge and reasonable control brought on or prior to prevent. the Outside Date.
(d) This Section 11.2 8.5 shall fully survive the expiration or earlier termination of this AgreementClosing.
Appears in 1 contract
Samples: Purchase Agreement (Invesco Real Estate Income Trust Inc.)
Seller’s Default. If Seller breaches fails to perform any of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, material obligations under this Agreement for any Related Seller has defaulted under any of the Related Contracts, and if Purchaser reason other than Purchaser's default or the applicable Related Purchaser has notified permitted termination of this Agreement by Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser as expressly provided herein Purchaser shall be entitled at entitled, as its option sole remedy, either (a) to notify receive the return of the Earnest Money from Escrow Agxxx xxx payment by Seller of the election by Purchaser to terminate this AgreementPurchaser's Reimbursable Due Diligence Expenses (as defined below), whereupon Escrow Agent which return and payment shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect operate to terminate this Agreement because and release Seller from any and all liability hereunder except provisions that expressly survive a termination of a default under a Related Contract if this Agreement, or (b) to enforce specific performance of the respective Related Purchasers have also terminated all obligation of Seller to execute and deliver the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as documents required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with this Agreement; it being specifically understood and agreed that the terms remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder; provided that Purchaser shall not be entitled to such remedies if Purchaser waives any default of Seller and conditions the Closing occurs. Purchaser expressly waives its rights to seek damages in the event of the default of Seller hereunder. Purchaser shall be deemed to have elected to terminate this Agreement and to receive a return of the Earnest Money from Escrow Agxxx xx Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction, on or before ninety (90) days following the date upon which the Closing was to have occurred. "Reimbursable Due Diligence Expenses" shall mean all costs and expenses (including reasonable attorneys' fees) in an amount not to exceed TWO HUNDRED THOUSAND DOLLARS ($200,000) incurred by Purchaser in connection with the negotiation and preparation of this Agreement, Purchaser's due diligence investigations of the Property and its operations and the enforcement of this Agreement. In no event If Seller fails to deliver all Tenant Estoppel Certificates (but delivers Seller Estoppel Certificates in lieu thereof), Purchaser shall Purchaser not be entitled to monetary damages for a failure of Seller to close hereunder, receive the Reimbursable Due Diligence Expenses in connection with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, deliver on the “Pursuit Costs”). For purposes part of this Agreement, a willful failure or default of Seller is a failure or default which was within the Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Standard Motor Products Inc)
Seller’s Default. If Seller breaches any of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the sale and purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related ContractsProperty contemplated by this Agreement is not consummated because of Seller's default, failure or refusal to perform hereunder, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default is not cured within ten (10) days of following written notice to Seller specifying such noticedefault, then Purchaser at Purchaser’s option, as Purchaser’s sole remedies hereunder either (a) the Exxxxxx Money, to the extent paid, shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit refunded to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is uniqueon demand, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of if Seller’s obligations to convey the Property to Purchaser in accordance with the terms default was intentional, willful and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to closematerial, Purchaser shall be entitled to recover from reimbursement by Seller of Purchaser’s reasonableactual, documented, out-of-pocket third-party expenses and costs, including reasonable attorneys’ fees, incurred by Purchaser in connection with its due diligence costs investigations of the Property not to exceed Thirty Thousand and expenses incurred 00/100 Dollars ($30,000.00), whereupon this Agreement shall be terminated and neither party shall have any further rights or obligations with respect hereto except as specifically set forth herein, or (b) Purchaser shall have the right to seek specific performance of this Agreement, which right must be exercised by Purchaser within thirty (30) days following the scheduled Closing Date. Purchaser shall have no right to receive any other equitable or legal relief. Notwithstanding the foregoing, Purchaser shall be deemed to have elected to pursue the remedy set forth in clause (a) above as its sole and exclusive remedy if Purchaser fails to timely file suit for specific performance against Seller on or before thirty (30) days following the scheduled Closing Date. Purchaser shall not be entitled to record a lis pendens against the Property other than in connection with any such timely filed specific performance action. The remedies set forth in this Section 12.1 shall be Purchaser’s sole remedies arising from a default, breach or failure to perform by Seller. Purchaser hereby waives for itself and anyone who may claim by or through Purchaser, any and all rights to pursue any other remedial rights or sxx or recover any amounts from Seller (including, without limitation, punitive, indirect and consequential damages), except to the extent set forth in the foregoing clauses (a) or (b) and except as set forth in Section 6.17, and shall not commence or pursue any such remedy. No partner, manager of, member or, beneficial interest holder in or agent of Seller, nor any advisor, trustee, manager, member, director, officer, employee, beneficiary, shareholder, participant, representative or agent of any company, corporation or trust that is or becomes a member, trustee or manager of Seller (collectively “Seller Parties”), shall have any personal liability, directly or indirectly, under or in connection with this Agreement, including reasonable attorney’s fees (collectively, Agreement or any agreement made or entered into under or pursuant to the “Pursuit Costs”). For purposes provisions of this Agreement, or any amendment or amendments to any of the foregoing made at any time or times, heretofore or hereafter, or in or with respect to any document, agreement or instrument delivered at Closing, except to the extent such parties are determined, pursuant to a willful failure or default final, non-appealable judgment, to have knowingly and intentionally defrauded Purchaser. Notwithstanding anything contained herein to the contrary, the terms of Seller is a failure or default which was within Seller’s knowledge this Section 12.1 shall survive Closing and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier delivery of the deed and termination of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Medalist Diversified REIT, Inc.)
Seller’s Default. If Seller breaches shall have committed a default hereunder if Seller commits a default under the terms of this Agreement that is not cured by Seller as provided hereunder. Subject to Section 7.3, in the event of a default by Seller under this Section 11.2, Buyer's sole and exclusive remedies hereunder shall be to either (a) terminate this Agreement, whereupon Buyer will receive a refund of the Exxxxxx Money from Escrow Agent, Seller shall reimburse Buyer for the Pursuit Costs promptly following Seller's receipt of reasonable evidence thereof and neither party hereto shall have any further obligation or liability to the other (except with respect to those provisions of its representationsthis Agreement which expressly survive the termination hereof), warrantiesand except as otherwise provided herein, covenants and/or agreements hereunder Buyer waives any right or fails claim to consummate the purchase and sale contemplated herein by the Closing Datedamages for Seller's breach, or if(b) seek specific performance of Seller's obligations under this Agreement (but no other action, pursuant to Section 5.2 abovefor damages or otherwise, any Related Seller has defaulted under any of the Related Contractsshall he permitted), and if Purchaser or Buyer prevails, Seller shall reimburse Buyer for all reasonable legal fees, court costs and costs related to such action not to exceed $100,000 under this Agreement, in the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default aggregate); provided that any action by Buyer for specific performance must be filed, if at all, within ten ninety (1090) days of Seller's default, and the failure to file within such notice, then Purchaser period shall be entitled at its option to notify constitute a waiver by Buyer of such right and remedy. If Buyer shall not have filed an action for specific performance within the aforementioned time period or so notified Seller of the its election by Purchaser to terminate this Agreement, whereupon Escrow Agent Buyer's sole remedy shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect be to terminate this Agreement because of a default under a Related Contract if in accordance with clause (a) above. Notwithstanding the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternativelyforegoing, in the event that specific performance is not available as a remedy because Seller shall willfully fail (i) conveys fee simple title to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for all or a breach by Seller portion of Seller’s obligations to convey the Property to Purchaser in accordance with a third party transferee prior to the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller Closing, or (ii) fails to close hereunder, with the exception that in the case transactions contemplated hereby as a result of an injunction lawfully filed by a third party as a result of a willful failure of legally binding, currently effective contract executed by Seller prior to close hereunder after the foregoing ten (10) day notice and cure periodClosing Date, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser then Buyer shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs Buyer's actual damages in an amount not to exceed the difference between the Purchase Price hereunder and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of purchase price Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreementactually receives from such third party transferee.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital - Retail Centers of America, Inc.)
Seller’s Default. If Seller breaches any of its representations, warranties, covenants and/or agreements hereunder or this transaction fails to consummate close as a result of Seller’s default, and such default is not cured by Seller within five (5) business days after receipt of written notice from Purchaser specifying the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any nature of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such noticedefault, then Purchaser Purchaser, as Purchaser’s sole and exclusive remedy hereunder, may elect to:
(i) terminate this Agreement by delivering written notice of Purchaser's election to terminate to Seller and Escrow Holder, in which event the Xxxxxxx Money (and all interest thereon) shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit returned immediately to Purchaser and Seller shall promptly reimburse Purchaser for its actual reasonable third party out of pocket expenses incurred in connection with this Agreement and the transactions contemplated hereby (including, but, not limited to reasonable attorneys’ fees and expenses) up to Seventy-Five Thousand Dollars ($75,000.00) and neither party will shall have any further obligation to the other hereunderrights, 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 Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). AlternativelyProperty, in the which event Purchaser waives its right to seek reimbursement from Seller shall willfully fail to close for all of its damages incurred as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller result of Seller’s obligations breach hereunder; or
(iii) waive any claim for damages (other than pursuant to convey Section 10.9 below) and file an action (the Property "Specific Performance Action") for specific performance of this Agreement to compel Seller to close. Seller expressly waives its right to demand that Purchaser in accordance post a bond to proceed with the terms and conditions Specific Performance Action. With respect to any post-Closing breach of any obligation under this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception Agreement that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to closeexpressly survives Closing, Purchaser shall be entitled to recover from Seller Purchaser’s reasonablepursue all remedies available at law and in equity other than a claim for consequential, out-of-pocket due diligence costs punitive or incidental damages, subject to the limitations imposed in Section 7.3 and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination 7.5 of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Griffin Capital Essential Asset REIT II, Inc.)
Seller’s Default. If Seller breaches (i) fails to perform any of its representationsobligations or is otherwise in default hereunder and Buyer has performed or tendered performance of all of its material obligations in accordance with this Agreement through the date of such default, warranties, covenants and/or agreements hereunder (ii) breaches a representation or fails to consummate the purchase and sale contemplated herein by the Closing Datewarranty, or if, (iii) willfully causes the failure of a condition precedent pursuant to Section 5.2 above5.4 hereof (as applicable, a “Seller Default), Buyer shall have the right to elect, in its sole and absolute discretion to:
6.2.1 Waive such failure and proceed to the Closing with no reduction in the Purchase Price; provided, however, that this provision will not limit Buyer’s right to receive reimbursement for attorney’s fees pursuant to Section 9.8 below in connection with any Related Seller has defaulted under any legal proceedings instituted by either party or Escrow Agent with respect to the enforcement of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the nor waive or affect Seller’s indemnity obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement or Buyer’s rights to enforce those indemnity obligations, nor waive or affect any of Seller’s other obligations under this Agreement to be performed after the Closing or Buyer’s rights to enforce those obligations;
6.2.2 Only if the sale contemplated hereby is not consummated because of a default under a Related Contract if by Seller in its obligation to sell the respective Related Purchasers have also terminated Property in accordance with the terms of this Agreement after Buyer has performed or tendered performance of all the Related Contracts due to such default). Alternativelyof its material obligations in accordance with this Agreement, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit file an action for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law performance to compensate fully Purchaser for a breach by cause Seller of Seller’s obligations to convey the Property to Purchaser in accordance with Buyer pursuant to the terms and conditions of this Agreement; or
6.2.3 Terminate this Agreement in its entirety by notice to Seller to that effect, in which event the parties hereto shall have no further obligations hereunder, except those which survive termination hereof (provided that this provision will not limit Buyer’s right to receive reimbursement for attorney’s fees pursuant to Section 9.8 below in connection with any legal proceedings instituted by either party or Escrow Agent with respect to the enforcement of this Agreement, nor waive or affect Seller’s indemnity obligations under this Agreement or Buyer’s rights to enforce those indemnity obligations), and to recover the full amount of the Deposit, and to receive reimbursement of Buyer’s actually incurred, documented out of pocket costs in conjunction with the Agreement. In For the avoidance of doubt, in the event of a Seller Default, the foregoing reimbursement obligation shall survive any termination of this Agreement, and in no event will Buyer seek any indirect, consequential or special damages against Seller.
6.2.4 Notwithstanding anything to the contrary contained in this Agreement, except as set forth below in connection with an action for specific performance, Buyer shall Purchaser not be entitled RP / DP Initials required to monetary damages for a failure fund the balance of the Purchase Price in order to enforce any of its remedies under this Agreement. Seller agrees that if Buyer funds the balance of the Purchase Price into escrow on the Closing Date and Seller defaults in its obligation to close hereundersell the Property to Seller in accordance with this Agreement, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser Buyer shall be entitled to recover from Seller Purchaser’s reasonablehave the Escrow Agent refund the Purchase Price to Buyer at any time after the Closing Date, out-of-pocket due diligence costs and expenses incurred the initial funding of the Purchase Price into escrow shall be sufficient in order for Buyer to pursue an action for specific performance, subject to any requirements under Georgia law to post a bond or other security in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to preventan action for specific performance. This Section 11.2 6.2 shall fully survive the expiration Closing or earlier termination of this Agreement.
Appears in 1 contract
Samples: Real Estate Purchase Agreement (Griffin-American Healthcare REIT III, Inc.)
Seller’s Default. If Seller breaches any In the event of a material default by Sellers of their material obligations under this Agreement that results in a material adverse effect to the Property, the Acquired Companies, the Fee Owners and the Companion Contract Property, as a whole, which default is not cured by Sellers within fifteen (15) days following written notice thereof from Buyer to Sellers, then Buyer may, as its representationssole and exclusive remedy, warrantieseither (i) terminate this Agreement by delivery of a written notice of termination to Sellers, covenants and/or agreements hereunder or fails whereupon subject to consummate the purchase and sale contemplated herein by the Closing Date, or if, Sellers’ rights pursuant to Section 5.2 above5(b) and the terms, any Related Seller has defaulted under any conditions and procedures of the Related ContractsEscrow Agreement, and the Deposit (including the Non-Refundable Deposit) shall be promptly returned to Buyer and, if Purchaser such material default is due to the willful default (such as the conveyance of the Membership Interests or the applicable Related Purchaser has notified Property by any Seller or such Related Seller to a third party other than Buyer where the remedy of such specific performance is unavailable), but in no event due to failure of any condition to Closing not caused by a default and Seller or such Related Seller has failed to cure such default within ten (10) days of such noticeby any Seller, then Purchaser Sellers shall be entitled at its option to notify Seller also reimburse Buyer for the documented, reasonable, unaffiliated third party, out of pocket costs and expenses (but expressly excluding any consequential, special, incidental or punitive damages) actually incurred by Buyer in the election by Purchaser to terminate negotiation of this Agreement, whereupon Escrow Agent shall return conducting its diligence activities and otherwise in preparation for the Deposit to Purchaser and neither party will have any further obligation Closing up to the other hereunder, other than the obligations amount of the Purchaser under Section 4.1 ONE MILLION TWO HUNDRED FIFTY THOUSAND AND NO/DOLLARS (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, $1,250,000.00) in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit aggregate for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of all such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with under this AgreementAgreement and the Companion Contract, including reasonable attorney’s fees without duplication (collectively, the “Pursuit Costs”), or (ii) continue this Agreement and bring an action for specific performance hereunder, provided appropriate legal proceedings are promptly commenced by Buyer after the occurrence of Sellers’ default and prosecuted in good faith with diligence and continuity. For purposes Notwithstanding anything herein to the contrary, in no event shall Buyer have the right to (and Buyer hereby waives any right to) file or assert any lis pendens against any Parcel of the Real Property. In the event of any termination of this entire Agreement by Buyer pursuant to this Section 14(a), then, upon the return of the Deposit (including the Non-Refundable Deposit) to Buyer and, if applicable, reimbursement to Buyer of its Pursuit Costs, this Agreement shall be and become null and void, neither party shall have any further rights or obligations hereunder (except for the obligations of Buyer and Sellers that expressly survive termination as set forth in this Agreement, which shall survive the cancellation of this Agreement). If the applicable material default pertains to a matter or condition that relates solely to one or more particular Parcels, a willful failure then Buyer shall have the right, as its sole and exclusive remedy, to either (i) proceed to Closing with respect to the affected Parcel(s) without any reduction in Purchase Price, or default of Seller is a failure (ii) designate the affected Parcel or default which was within SellerParcels as Excluded Parcels (and such Parcels shall not be subject to the Excluded Parcel Cap), and in such event, Section 5(c) shall apply. Nothing set forth in this Section 14(b) shall be deemed to limit Sellers’ liability for Sellers’ indemnification obligations hereunder, any attorney’s knowledge and reasonable control fees payable by Sellers in accordance with Section 28(a), or in connection with fraud claims, such obligations to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Vinebrook Homes Trust, Inc.)
Seller’s Default. (i) If Seller breaches shall not perform any of its representations, warranties, covenants and/or agreements obligations hereunder within the time required (time being of the essence) for such performance or fails to consummate the purchase if any of Seller's warranties and sale contemplated representations contained herein by are not fully accurate as of the Closing DateDate (collectively, or ifthe "Seller's Obligations") the time for performance hereunder shall be extended for such period, pursuant not to Section 5.2 aboveexceed ninety (90) days, any Related Seller has defaulted under any of the Related Contractsas shall be reasonably specified by Buyer, and if Purchaser or Seller shall use diligent efforts to satisfy and perform all of Seller's Obligations. If, at the applicable Related Purchaser has notified Seller or such Related Seller expiration of such default extended time for performance, despite having used such diligent efforts Seller shall remain unable to satisfy and Seller or such Related Seller has failed to cure such default within ten (10) days perform all of such noticeSeller's Obligations, then Purchaser Buyer shall be entitled have the option, at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 Buyer's sole discretion: (provided Purchaser may only elect I) to terminate this Agreement because by notice given to Seller, whereupon the Deposit, together with all interest and other sums paid by Buyer hereunder, shall be promptly refunded by Escrow Agent and all obligations of the parties hereto shall cease and this Agreement shall be void and without recourse to the parties hereto, excluding, however, those provisions hereof which are expressly provided herein to survive termination of the Agreement, or (II) to accept title to the Property as provided in Section 8(a)(ii) below. In the event that Seller seeks relief as a default debtor under a Related Contract if any applicable law, including without limitation the respective Related Purchasers federal bankruptcy code, or upon the involuntary commencement of any such proceeding, Buyer shall have also terminated the right of possession of the Property pending the Closing and shall be entitled to any and all the Related Contracts due rights pursuant to such default11 U.S.C. Section 365(i) and (ii). AlternativelyBuyer shall have the right to obtain specific performance of this Agreement, as well as the benefit of any other rights or remedies provided herein or by applicable law, in the event of any default hereunder by Seller (i.e., Seller's failure to perform its obligations hereunder where such failure is not excused by any of the express terms of this Agreement).
(ii) Buyer shall willfully fail have the election, at the original or at any extended time for Closing, to close as required hereunderaccept such title to, Purchaser at its election shall be entitled to bring suit for specific performanceand possession of, inasmuch as the parties recognize and acknowledge that the Property is uniqueas Seller can deliver in its then condition and to thereupon pay the Purchase Price without any deductions, except such amount necessary to remove all mortgages, liens or encumbrances which secure the payment of money and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser such adjustments computed in accordance with the terms and conditions of this Agreement. In no event Section 2(b) above, in which case Seller shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of convey such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreementtitle.
Appears in 1 contract
Seller’s Default. If at any time prior to Closing, Seller breaches is in material breach or default of any of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase obligations under this Agreement, which breach or default is not caused by a Purchaser Default (each, a "Seller Default"), and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified not cured such Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default Default within ten (10) days after Seller's receipt of written notice of such noticeSeller Default from Purchaser, then Purchaser shall be entitled at Purchaser, as its option sole and mutually exclusive remedies for such Seller Default, may elect either to notify Seller of the election by Purchaser to (i) terminate this Agreement, whereupon in which case Escrow Agent shall return refund the entire Deposit to Purchaser, Seller shall pay to Purchaser the Break-Up Fee within ten (10) Business Days after such termination, and neither party will Seller and Purchaser shall have no further rights or obligations under this Agreement, except those which expressly survive such termination; or (ii) proceed to Closing without any further reduction in or setoff against the Purchase Price (in which case Purchaser shall be deemed to have waived the Seller Default. Seller's obligation to pay the other hereunder, other than Break-Up Fee shall survive the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions termination of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunderSELLER AND PURCHASER AGREE THAT IF THIS AGREEMENT IS TERMINATED PURSUANT TO THIS SECTION 12.1, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure periodTHE DAMAGES THAT PURCHASER WOULD SUSTAIN AS A RESULT OF SUCH TERMINATION WOULD BE DIFFICULT IF NOT IMPOSSIBLE TO ASCERTAIN. ACCORDINGLY, and provided that in the absence of such failure to close Purchaser would have been readyAFTER NEGOTIATION, willing and able to closeSELLER AND PURCHASER AGREE THAT PURCHASER SHALL RETAIN THE DEPOSIT AND SELLER SHALL PAY THE BREAK-UP FEE TO PURCHASER AS FULL AND COMPLETE LIQUIDATED DAMAGES AND AS PURCHASER'S SOLE AND EXCLUSIVE REMEDY FOR SUCH TERMINATION; PROVIDED, Purchaser shall be entitled to recover from Seller Purchaser’s reasonableHOWEVER, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this AgreementTHAT THE PARTIES SHALL RETAIN ALL RIGHTS AND REMEDIES UNDER THIS AGREEMENT WITH RESPECT TO THOSE OBLIGATIONS WHICH EXPRESSLY SURVIVE SUCH TERMINATION.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Apple Hospitality Five Inc)
Seller’s Default. If Seller breaches any of its representationsdefaults under this Contract, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option entitled, as Purchaser’s sole and exclusive remedies, to notify Seller of the election by Purchaser to either (a) terminate this Agreement, whereupon Escrow Agent shall Contract upon written notice to Seller and to request the Title Company to return the Deposit Xxxxxxx Money Deposit, together with all accrued interest thereon, to Purchaser and neither party will have any further obligation or (b) pursue an action to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for enforce specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller performance of Seller’s obligations under this Contract. Purchaser has no right, except as provided below, to convey seek damages against Seller. In addition, if Purchaser’s remedy of specific performance is not available to Purchaser because of the intentional and wrongful acts of Seller by conveying the Property to Purchaser in accordance with a third party prior to the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for Closing Date (“Wrongful Sale”) or Seller wrongfully obtains a failure of Seller to close hereunder, with new mortgage loan on the exception that in the case of a willful failure of Seller to close hereunder Property after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure Effective Date or fails to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees satisfy its existing mortgage (collectively, the “Pursuit CostsWrongful Mortgage”), then to the extent the Purchaser is unable to get specific performance (as a result of the Wrongful Sale or Wrongful Mortgage), then the Purchaser would be entitled to the return of its Xxxxxxx Money Deposit together with the agreed upon liquidated damages of equal to Net Consideration received by the Seller for Wrongful Sale of the Property or Wrongful Mortgage of the Property to such third party. For purposes The term “Net Consideration” shall mean the purchase price or mortgaged proceeds actually received by Seller for the sale of the Property to a third party prior to the Closing Date net of any and all closing expenses incurred by Seller in connection with the sale in excess of the Purchase Price. The amount of the Xxxxxxx Money Deposit so refunded under this Agreement, a willful failure or default of Seller is a failure or default which was within Section 8.02 shall not act as an offset to any damages actually suffered by the Purchaser due to Seller’s knowledge and reasonable control to preventdefault under this Contract. This After the Closing, Purchaser may seek damages against Seller for any breach of the Seller’s Representations set for in Section 11.2 shall fully survive the expiration or earlier termination of this Agreement9.01 below.
Appears in 1 contract
Samples: Purchase Agreement (Carter Validus Mission Critical REIT II, Inc.)
Seller’s Default. If Seller breaches fails to perform any of its representationsobligations under this Agreement for any reason other than Purchaser’s default, warranties, covenants and/or agreements hereunder or fails failure of a condition to consummate the purchase and sale contemplated herein by the Closing DateSeller’s obligation to close, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any the permitted termination of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified this Agreement by Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such noticePurchaser as expressly provided herein, then Purchaser shall be entitled at entitled, as its option sole remedy, either (a) to notify Seller receive the return of the election Xxxxxxx Money from Escrow Agent and Seller shall reimburse Purchaser for Purchaser’s actual, out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred in connection with the transaction contemplated by Purchaser to terminate this Agreement, whereupon Escrow Agent up to a maximum amount of $50,000, as reasonably demonstrated to Seller (e.g., with copies of invoices, paid receipts, etc.) (such amount, the “Diligence Reimbursement”), which return and reimbursement shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect operate to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated and release Seller from any and all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required liability hereunder, Purchaser at its election shall be entitled or (b) to bring suit for enforce specific performance, inasmuch as performance of the parties recognize obligation of Seller to execute and acknowledge that deliver the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations documents required to convey the Property to Purchaser in accordance with this Agreement; it being specifically understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder. Except as set forth in the next sentence of this Section 8.2, Purchaser expressly waives its rights to seek damages in the event of the default of Seller hereunder. In the event Seller deliberately or willfully refuses or fails to consummate Closing in violation of the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, by selling the Property to a willful failure third party rather than to Purchaser, and as a result thereof specific performance is not an available remedy to Purchaser, then in addition to the remedies provided in this Section 8.2, Purchaser may bring an action against Seller for Purchaser’s actual damages incurred (but not consequential or default punitive damages) as the result of Seller is conveying the Property to such third party; provided, however, Purchaser’s damages (as proven in such action) shall not exceed the difference in the Purchase Price set forth herein and the purchase price received by Seller in a failure sale of the Property to a third party. Purchaser shall be deemed to have elected to terminate this Agreement and to receive a return of the Xxxxxxx Money from Escrow Agent if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction, on or default before forty-five (45) days following the date upon which the Closing was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreementhave occurred.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Real Estate Fund Xiii L P)
Seller’s Default. If Seller breaches any of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase sale of the Property pursuant to this Agreement or otherwise defaults on its obligations hereunder at or prior to Closing for any reason except failure by Purchaser to perform hereunder, or if prior to Closing any one or more of Seller’s representations or warranties are breached in any material respect (i.e., in accordance with Section 3.2(g)), and sale contemplated herein such default or breach is not cured by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any earlier of the Related Contracts, and if fifth (5th) Business Day after written notice thereof from Purchaser or the applicable Related Purchaser has notified Closing Date (provided that no notice or cure period shall apply if Seller or such Related Seller fails to timely consummate the sale of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such noticethe Property hereunder), then Purchaser shall be entitled at elect, as its option to notify Seller of the election by Purchaser to terminate this Agreementsole remedy, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 either (provided Purchaser may only elect i) to terminate this Agreement because by giving Seller timely written notice of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due such election prior to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser or at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is uniqueClosing, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller recover the Exxxxxx Money and reimbursement of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, actual out-of-pocket due diligence costs and third-party expenses incurred in connection with this Agreement, including reasonable attorney’s fees up to a maximum reimbursement of $250,000.00, (collectivelyii) to enforce specific performance to consummate the sale of the Property hereunder; provided, however, that if Seller willfully conveys the “Pursuit Costs”). For purposes Property to a third party or third parties, such that the remedy of this Agreementspecific performance is unavailable to Purchaser, a willful Purchaser shall have the right to seek its actual damages against Seller in an amount not to exceed $1,500,000.00, or (iii) to waive said failure or default breach and proceed to Closing without any reduction in the Purchase Price. In no event shall Seller be liable for consequential, speculative, remote or punitive damages, or any other damages except as specifically provided herein, and Purchaser hereby waives and releases any right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected option (i) above 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 or actual damages against Seller on or before the date that is ten (10) Business Days following the scheduled Closing Date or, having given such notice, fails to file a failure lawsuit asserting such claim or default cause of action for specific performance or damages in the county in which was the Exxxxxx Money is deposited within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive forty five (45) days following the expiration or earlier termination of this Agreementscheduled Closing Date.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Bluerock Residential Growth REIT, Inc.)
Seller’s Default. 20.1 If this sale and purchase shall not be successfully consummated as a result of Seller's inability to deliver title of the Property to Buyer, or the refusal of the Title Company or another title insurer to deliver to Buyer the policy of title insurance required under this Agreement, then Seller shall have no liability to Buyer of any kind or nature and this Agreement shall be terminated. In such event, Buyer shall be entitled to the return of all funds paid to Escrow Holder, together with interest accrued thereon.
20.2 If Seller breaches fails to perform any of its representationsSeller's obligations under this Agreement, warrantiesthen Buyer shall immediately give written notice thereof to Seller, covenants and/or agreements hereunder or fails to consummate which notice shall specify in detail the purchase manner and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related Contractsreasons for Seller's alleged default, and if Purchaser such notice shall be accompanied by documents, information and matters reasonably necessary to substantiate Buyer's claims of Seller's default. Seller shall not be deemed or the applicable Related Purchaser has notified construed to be in default of Seller's obligations under this Agreement unless Seller or such Related Seller of such default and Seller or such Related Seller has failed fails to cure such default within ten five (105) days after Seller's receipt of such noticewritten notice from Buyer; provided, however, if the nature of Seller's default is such that more than five (5) days are reasonably required for its cure, then Purchaser Seller shall not be entitled at deemed to be in default of its option obligations hereunder if Seller, within five (5) days receipt of Buyer's notice of default, commences to notify take steps toward curing the alleged default.
20.3 Notwithstanding anything to the contrary herein, as an express material consideration and condition for Seller of the election by Purchaser to terminate enter into this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser Buyer hereby releases, acquits and neither party will have discharges Seller and Seller Parties from and against any further obligation to the other hereunderand all consequential, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternativelyincidental, indirect, special, collateral, exemplary or punitive damages arising out of, in the event Seller shall willfully fail connection with or related to close as required hereunderSeller's violation, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions or default of this Agreement. In no event , including, but not limited to, any Claim for loss of profit, loss of opportunity, loss of production or loss of use, regardless of whether the damages sought are based on contract, tort, statute or otherwise, and irrespective of whether sole, concurrent or other negligence, whether active or passive, or strict liability is involved or is asserted.
20.4 Notwithstanding anything to the contrary herein, as an express material consideration and condition for Seller to enter into this Agreement, Buyer agrees that, if the Close of Escrow shall Purchaser be entitled have occurred (and Buyer shall not have waived, relinquished or released any applicable rights pursuant to monetary damages any further limitation set forth herein), Seller's liability for a failure any violation, breach or default of Seller's representations, warranties, covenants, indemnities or other obligations (whether express or implied) of Seller to close hereunder, with the exception that under this Agreement (or any document executed or delivered in connection herewith) shall under no circumstances exceed Five Hundred Thousand Dollars ($500,000.00) in the case aggregate.
20.5 No constituent partner in or agent of Seller, nor any advisor, trustee, director, officer, employee, beneficiary, shareholder, participant, representative or agent of any corporation or trust that is or becomes a willful failure of constituent partner in Seller to close hereunder after the foregoing ten (10) day notice and cure periodshall have any personal liability, and provided that in the absence of such failure to close Purchaser would have been readydirectly or indirectly, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred under or in connection with this Agreement, including reasonable attorney’s fees (collectively, Agreement or any agreement made or entered into under or pursuant to the “Pursuit Costs”). For purposes provisions of this Agreement, a willful failure or default any amendment or amendments to any of Seller is a failure the foregoing made at any time or default which was within times, heretofore or hereafter, and Buyer and its successors and assigns and, without limitation, all other persons and entities, shall look solely to Seller’s knowledge 's assets for the payment of any Claim or for any performance, and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination Buyer, on behalf of this AgreementBuyer and Buyer's successors and assigns, hereby waives any and all such personal liability.
Appears in 1 contract
Seller’s Default. If In the event of default by Seller breaches under the terms of this Agreement, including, without limitation, the failure of Seller to cure any title defects or objections, except as otherwise specifically set forth herein, at Purchaser’s option: (i) if any such defects or objections consist of its representationstaxes, warrantiesmortgages, covenants and/or agreements hereunder deeds of trust, deeds to secure debt, mechanic’s or fails to consummate the purchase and sale contemplated herein by the Closing Datematerialman’s liens, or ifother such monetary encumbrances created or suffered by Seller and which will not to be removed at Closing, pursuant to Section 5.2 above, any Related Seller has defaulted under any of Purchaser shall have the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed right to cure such default within ten defects or objections, in which event the Purchase Price shall be reduced by an amount equal to the costs to satisfy, bond over or insure over such defects or objections, and upon such curing, the Closing hereof shall proceed in accordance with the terms of this Agreement; or (10ii) days of such notice, then Purchaser shall be entitled at its option to notify Seller of have the election by Purchaser right to terminate this AgreementAgreement by giving written notice of such termination to Seller, whereupon Escrow Agent shall return the Deposit promptly refund all Xxxxxxx Money to Purchaser, and Purchaser and neither party will Seller shall have any no further obligation rights, obligations, or liabilities hereunder, except as may be expressly provided to the other hereundercontrary herein; or (iii) Purchaser shall have the right to accept title to the Property subject to such defects and objections with no reduction in the Purchase Price, other than the obligations of the Purchaser under Section 4.1 in which event such defects and objections shall be deemed “Permitted Exceptions”; or (provided iv) Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for seek specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions performance of this Agreement. In Notwithstanding any provision in this Agreement to the contrary, in no event shall Purchaser Seller be entitled to monetary damages liable for a failure any special, punitive, speculative or consequential damages, nor shall Seller’s liability after Closing under any representation, warranty, certification, covenant, agreement, re-proration, obligation or indemnity made hereunder or under any of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred closing documents or otherwise in connection with this Agreement, including reasonable attorneythe transactions contemplated herein exceeds $1,000,000 in the aggregate (“Seller’s fees (collectively, the “Pursuit CostsMaximum Liability”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Real Estate Investment Trust Ii Inc)
Seller’s Default. If In the event that Seller breaches shall have failed to have performed any of its representations, warranties, the covenants and/or agreements hereunder contained in these Terms and Conditions of Sale which are to be performed by Seller or fails if the representations and warranties made by Seller in these Terms and Conditions of Sale or the Option Agreement are not true and correct in every material respect (without regard to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to deemed modifications under Section 5.2 above, any Related Seller has defaulted under any 10 of the Related ContractsOption Agreement), Buyer may, at its option, terminate the Option Agreement by giving written notice of such termination to Seller and Seller shall immediately thereafter return the Second Year Option Payment less the Carrying Costs or the Deposit, as the case may be, and if Purchaser or thereupon the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed parties shall have no further liability to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the each other hereunder, other than . In the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternativelyalternative, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms 's willful default and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller refusal to close hereunder, Buyer may seek specific performance of Seller's obligations; provided however, any complaint seeking such specific performance must (a) allege with specificity Seller's willful default and refusal to close under the exception Option Agreement on the Closing Date; (b) allege with specificity that in Buyer had sufficient funds to close the case transaction on the Closing Date; and (c) allege that as of the date of the filing such complaint seeking specific performance, sufficient funds continue to be available to Buyer and will be available to Buyer for at least thirty-one (31) days following the entry of an order by a court of competent jurisdiction requiring specific performance by Seller under the Option Agreement. In the event Buyer terminates this Agreement after a willful failure default of Seller, Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, reimburse Buyer for its actual out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes entering into of this AgreementAgreement and Buyer's inspection of the Premises. Buyer acknowledges and agrees that, except as set forth in the immediately preceding sentence, under no circumstances shall Buyer have any right to seek or collect damages from Seller, its partners or the officers, directors, employees, agents or contractors of any of them, whether actual, punitive, consequential or otherwise as a willful result of Seller's failure or default refusal to close hereunder and/or as a result of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreementspecific performance hereof.
Appears in 1 contract
Samples: Purchase Option Agreement (Brandywine Realty Trust)
Seller’s Default. If Seller breaches any of its representationsIf, warranties, covenants and/or agreements hereunder on or fails to consummate the purchase and sale contemplated herein by before the Closing Date, (i) Seller is in default of any of its obligations hereunder, or if(ii) the Closing otherwise fails to occur by reason of Seller’s failure or refusal to perform its obligations hereunder in a prompt and timely manner, pursuant then Buyer may elect, as its sole and exclusive remedy, to Section 5.2 above(a) terminate this Agreement in its entirety by written notice to Seller, promptly after which the Deposit shall be returned to Buyer, and thereafter neither party to this Agreement shall have any Related Seller has defaulted further rights or obligations hereunder other than any arising under any section or provision herein that expressly provides that it survives the termination of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent or (b) waive the condition and proceed to close the Transaction, or (c) seek specific performance of this Agreement by Seller, Buyer specifically acknowledging that Buyer shall return the Deposit have no right to Purchaser and neither party will damages pursuant to this Section 10.2 or otherwise under this Agreement. As a condition precedent to exercise by Buyer of any right Buyer may have any further obligation to the other bring an action for specific performance hereunder, other than Buyer must commence such an action within ninety (90) days - 21- after the obligations occurrence of Seller’s default. Buyer agrees that its failure timely to commence such an action for specific performance within such ninety (90) day period shall be deemed a waiver by Buyer of its right to commence an action for specific performance. Notwithstanding the foregoing and notwithstanding Seller’s exercise of its right to extend the Closing as provided in Section 6.1 above, if, for any reason, Seller fails to obtain a release of the Purchaser under Section 4.1 (provided Purchaser Property from the lien of Seller’s existing debt encumbering the Property for any reason, including Seller’s determination in its discretion that satisfying the conditions for obtaining a release would be economically unreasonable, Seller may only elect to terminate this Agreement because of a default under a Related Contract if by written notice to Buyer on or before the respective Related Purchasers have also terminated all the Related Contracts due to such default). AlternativelyClosing, in which event this Agreement shall terminate in its entirety. Promptly following such termination, as Buyer’s sole and exclusive remedy, the event Deposit shall be returned to Buyer and Seller shall willfully fail to close as required hereunderreimburse Buyer for Buyer’s actual, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, reasonable out-of-pocket due diligence costs and expenses incurred in connection with the performance of this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”)Agreement in an aggregate amount not to exceed $25,000.00. For purposes hereof, satisfying the conditions for obtaining a release of the lien of Seller’s existing debt from the Property shall be deemed to be economically unreasonable if such conditions would require Seller to pay its lender (or servicer) in excess of the Purchase Price in order to obtain the release. Seller and Buyer expressly acknowledge that a breach of Seller’s Warranties arising prior to the Closing Date shall not constitute a “default” for purposes of this AgreementSection 10.2 and that the consequences of any such breach shall be governed by Section 8.3.3, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge to the extent applicable, and reasonable control to prevent. This by Section 11.2 shall fully survive the expiration or earlier termination of this Agreement8.3.5 and Section 9.2.5 above.
Appears in 1 contract
Seller’s Default. If Seller breaches fails to perform any of its representationsobligations or is otherwise in default hereunder, warranties, covenants and/or agreements hereunder breaches a representation or fails to consummate the purchase and sale contemplated herein by the Closing Datewarranty, or if, willfully causes the failure of a condition precedent pursuant to Section 5.2 above5.4 hereof (as applicable, a “Seller Default), Buyer shall have the right to elect, in its sole and absolute discretion to:
6.2.1 Waive such failure and proceed to the Closing with no reduction in the Purchase Price; provided, however, that this provision will not limit Buyer’s right to receive reimbursement for attorney’s fees pursuant to Section 9.8 below in connection with any Related Seller has defaulted under any legal proceedings instituted by either party or Escrow Agent with respect to the enforcement of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the nor waive or affect Seller’s indemnity obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due or Buyer’s rights to such default). Alternativelyenforce those indemnity obligations, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller nor waive or affect any of Seller’s other obligations under this Agreement to be performed after the Closing or Buyer’s rights to enforce those obligations;
6.2.2 Exercise any of its other rights or remedies Buyer may have at law or in equity, including, without limitation, an action for specific performance to cause Seller to convey the Property to Purchaser in accordance with Buyer pursuant to the terms and conditions of this Agreement. In no event shall Purchaser be entitled ; or
6.2.3 Terminate this Agreement in its entirety by notice to monetary damages for a failure of Seller to close that effect, in which event the parties hereto shall have no further obligations hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten except those which survive termination hereof (10) day notice and cure period, and provided that in the absence of such failure this provision will not limit Buyer’s right to close Purchaser would have been ready, willing and able receive reimbursement for attorney’s fees pursuant to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred Section 9.8 below in connection with this Agreement, including reasonable attorney’s fees (collectively, any legal proceedings instituted by either party or Escrow Agent with respect to the “Pursuit Costs”). For purposes enforcement of this Agreement, a willful failure nor waive or default of Seller is a failure or default which was within affect Seller’s knowledge indemnity obligations under this Agreement or Buyer’s rights to enforce those indemnity obligations), and reasonable control to preventrecover the full amount of the Deposit, to receive reimbursement of Buyer’s actually incurred, out of pocket costs in conjunction with the Agreement and to recover all damages and seek such other relief at law or in equity to which Buyer may be entitled as a result of Seller’s breach; provided, however, that the reimbursed costs and damages exclusive of the Deposit hereunder shall not exceed One Hundred Thousand and 00/100 Dollars ($100,000.00). For the avoidance of doubt, in the event of a Seller Default, the foregoing reimbursement obligation shall survive any termination of this Agreement.
6.2.4 Notwithstanding anything to the contrary contained in this Agreement, Buyer shall not be required to fund the balance of the Purchase Price in order to enforce any of its remedies under this Agreement. This Section 11.2 6.2 shall fully survive the expiration Closing or earlier termination of this Agreement.
Appears in 1 contract
Samples: Real Estate Purchase Agreement (Griffin-American Healthcare REIT III, Inc.)
Seller’s Default. If Seller breaches any of its representations, warranties, covenants and/or agreements hereunder or this transaction fails to consummate the purchase and sale contemplated herein close as a result of a default by the Closing Date, or if, pursuant Seller with respect to Section 5.2 above, any Related Seller has defaulted under any of the Related Contractsterms of this Agreement, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within continues for a period of ten (10) calendar days after the Purchaser notifies the Seller in writing of such noticeevent, then the Purchaser shall be entitled to the return of the Deposit and may, at its option option, elect to:
A. Terminate this Agreement upon written notice to notify Seller of the election by Purchaser to terminate Seller, in which event, both parties shall be released from all duties and obligations under this Agreement, whereupon Escrow Agent shall return except as otherwise specifically provided in this Agreement, and the Deposit to Purchaser and neither party will have any further obligation shall be returned to the other hereunder, other than the obligations Purchaser; or
B. Enforce specific performance of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations under this Agreement, including specifically the conveyance of the Property to the Purchaser in the condition required hereby; and/or
C. If, and only if, Seller’s default is (i) a willful refusal by Seller to convey the Property to Purchaser as required by this Agreement or (ii) Seller’s refusal to correct a breach or defect which is within the Seller’s reasonable control, seek an immediate return of the Deposit and immediate reimbursement of all out-of-pocket costs and expenses incurred by the Purchaser in accordance connection with its proposed acquisition of the terms Property including, but not limited to, legal fees. In the event that the Purchaser elects to seek reimbursement of such costs and conditions expenses from the Seller, the Seller’s liability to Purchaser for all such costs and expenses shall be limited to the Purchaser’s actual out-of-pocket costs and expenses incurred by the Purchaser in connection with its proposed acquisition of this Agreementthe Property, and the Purchaser shall not claim, xxx for or accept an award in excess of such amount. In no event shall the Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with have the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled right to recover from the Seller Purchaser’s reasonable, out-of-pocket due diligence any special or consequential damages pursuant to this Paragraph 13C. If the Seller reimburses the Purchaser for all costs and expenses incurred as set forth above, and the purchase and sale of the Property is not consummated in connection accordance with this Agreement, including reasonable attorneythe Purchaser shall deliver to the Seller, at no cost or expense to the Seller, to the extent not previously delivered to the Seller, all title materials, surveys, plans, specifications, engineering and mechanical data generated, collected, prepared or compiled in connection with the Purchaser’s fees (collectivelyinvestigations, examinations, tests or inspections of the Property; provided, however, that if the purchase and sale of the Property is not consummated in accordance with this Agreement due to a default by the Seller, the “Pursuit Costs”). For purposes of Purchaser shall not be obligated to deliver such materials until such time as the Purchaser has received any remedies to which it is entitled under this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreementparagraph.
Appears in 1 contract
Samples: Real Estate Purchase Agreement (NNN Healthcare/Office REIT, Inc.)
Seller’s Default. If Seller breaches Subject to Section 6.3 hereof, if, prior to the Closing Date (as the same may have been extended hereunder), Sellers shall for any reason whatsoever default in the performance of its representationsobligations under this Agreement and Purchaser does not wish to waive such default, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of may either (i) terminate this Agreement for such default (excluding those indemnities which expressly survive termination and Seller or such Related Seller has failed to cure such default within ten (10) days of such noticethe confidentiality provisions set forth in Section 5.3), then in which event Purchaser shall be entitled at its option to notify Seller the return of the election by Escrowed Amount and this Agreement shall terminate without further recourse (except with respect to those provisions that are specifically stated to survive termination) or (ii) commence an action for specific performance against Sellers, it being acknowledged that damages at law would be an inadequate remedy. Purchaser acknowledges that these remedies are its exclusive remedies at law and at equity. Purchaser shall be deemed to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect elected to terminate this Agreement because (as provided in clause (i) above) if Purchaser fails to deliver to Sellers written notice of its intent to file a default under cause of action for specific performance against Sellers on or before thirty (30) days after written notice of termination from Sellers or sixty (60) days after the Closing Date (as the same may have been extended hereunder), whichever shall occur first, or having given Sellers notice, failure to file a Related Contract if lawsuit asserting such cause of action within ninety (90) days after the respective Related Purchasers Closing Date (as the same may have also terminated all the Related Contracts due to such defaultbeen extended hereunder). Alternatively, in the In no event Seller shall willfully fail Sellers be liable to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a any consequential or punitive damages based upon any breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. Purchaser further agrees that recourse for any liability of Sellers under this Agreement or any document or instrument delivered simultaneously or in connection with or pursuant to this Agreement shall be limited (i) solely to the Properties, if Closing has not occurred, and (ii), following the Closing, to the net proceeds of the Fixed Purchase Price realized by Sellers (i.e., after payment of all indebtedness and transaction costs). In no event shall Purchaser be entitled to monetary damages seek satisfaction for a failure any obligation from any partners, members, managers, shareholders, officers, directors, employees, agents, legal representatives, successors or assigns of Seller to close hereunderSellers, with the exception that in the case nor shall any of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence have any personal liability for any such obligations of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this AgreementSellers.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Extra Space Storage Inc.)
Seller’s Default. If In the event Seller breaches any is in material breach of its representations, warranties, covenants and/or agreements hereunder or fails or refuses to consummate the purchase and sale contemplated herein by the Closing Dateperform its material obligations under this Agreement, or ifthen, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within after not less than ten (10) days prior written notice and opportunity to cure, in addition to Purchaser’s rights and remedies (and subject to the limitations under Section 6.1.21) with regard to Seller’s breach of such noticeany of its representations and warranties hereunder, then Purchaser at Purchaser’s option, as Purchaser’s sole remedies hereunder either (a) the Exxxxxx Money, to the extent paid, shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit refunded to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is uniqueon demand, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from reimbursement by Seller of Purchaser’s reasonableactual, documented, out-of-pocket third-party expenses and costs, including reasonable attorneys’ fees, incurred by Purchaser in connection with its due diligence costs investigations of the Property not to exceed One Hundred Thousand and expenses incurred 00/100 Dollars ($100,000.00), whereupon this Agreement shall be terminated and neither party shall have any further rights or obligations with respect hereto except as specifically set forth herein, or (b) Purchaser shall have the right to seek specific performance of this Agreement, which right must be exercised by Purchaser within thirty (30) days of delivery of Purchaser’s written default notice to Seller described above. Purchaser shall have no right to receive any other equitable or legal relief. Notwithstanding the foregoing, Purchaser shall be deemed to have elected to pursue the remedy set forth in clause (a) above as its sole and exclusive remedy if Purchaser fails to file suit for specific performance against Seller on or before thirty (30) days following the scheduled Closing Date. Purchaser shall not be entitled to record a lis pendens against the Property other than in connection with any such timely filed specific performance action. The remedies set forth in this Section 12.1 shall be Purchaser’s sole remedies arising from a default, breach or failure to perform by Seller. Purchaser hereby waives for itself and anyone who may claim by or through Purchaser, any and all rights to pursue any other remedial rights or sxx or recover any amounts from Seller (including, without limitation, punitive, indirect and consequential damages), except to the extent set forth in the foregoing clauses (a) or (b) and except as set forth in Section 6.1.19, and shall not commence or pursue any such remedy. No partner, manager of, member or, beneficial interest holder in or agent of Seller, nor any advisor, trustee, manager, member, director, officer, employee, beneficiary, shareholder, participant, representative or agent of any company, corporation or trust that is or becomes a member, trustee or manager of Seller (collectively “Seller Parties”), shall have any personal liability, directly or indirectly, under or in connection with this Agreement, including reasonable attorney’s fees (collectively, Agreement or any agreement made or entered into under or pursuant to the “Pursuit Costs”). For purposes provisions of this Agreement, or any amendment or amendments to any of the foregoing made at any time or times, heretofore or hereafter, or in or with respect to any document, agreement or instrument delivered at Closing, except to the extent such parties are determined, pursuant to a willful failure or default final, non-appealable judgment, to have knowingly and intentionally defrauded Purchaser. Notwithstanding anything contained herein to the contrary, the terms of Seller is a failure or default which was within Seller’s knowledge this Section 12.1 shall survive Closing and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier delivery of the Deed and termination of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Medalist Diversified REIT, Inc.)
Seller’s Default. If In the event of Seller’s failure to perform in any material respect any of its obligations hereunder (or, with respect to covenants or obligations separately qualified by materiality standards, failure to perform in any respect) or if any of the representations and warranties made herein by Seller (after giving effect to such changes and updates as are herein expressly permitted) are untrue in any material respect (or, with respect to representations and warranties separately qualified by materiality standards, untrue in any respect) (each event referred to in the foregoing provisions of this sentence is herein sometimes called a “Seller Default”), Buyer may either (i) seek specific performance of this Agreement or (ii) terminate this Agreement by written notice of termination to Seller and Title Insurance Company, whereupon the Deposit shall be returned by Title Insurance Company to Buyer promptly and Seller shall, on Buyer’s demand, tendered in reasonable detail to Seller within thirty (30) days after written notice of termination, reimburse Buyer for Buyer’s actual and reasonable out of pocket documented expenses incurred exclusively with respect to this transaction, and not any indirect, consequential or punitive damages, no “overhead” or similar charges, and no damages relating to lost profits or lost opportunity, which reimbursement shall not exceed $150,000; provided, however, that if Seller, prior to the termination of this Agreement, enters into an agreement with a third party to sell the Property or the Membership Interests and fails to close the purchase contemplated under this Agreement without the occurrence of any default by Buyer, Buyer shall thereafter be entitled to pursue all rights and remedies available under law or in equity, including all actual damages Buyer has suffered as a result of such Seller’s Default, exclusive of indirect, consequential or punitive damages. The provisions of this Section 12.1 shall survive the Closing. Buyer hereby waives its right to collect damages and all other remedies, except as provided in this Section, and agrees that the foregoing shall be Buyer’s sole and exclusive remedies in the event Buyer terminates this Agreement as a result of Seller’s Default, provided that the foregoing is not intended to limit Seller’s agreements or obligations under Section 15.5 (Attorneys’ Fees) or Article 11 (Prorations; Expenses) or Article 13 (Brokers), or any right or remedy of Buyer to recover the sums therein provided for (but no consequential damages) if Seller breaches any of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this AgreementSections.
Appears in 1 contract
Samples: Membership Interests Purchase Agreement (Mercantile Bankshares Corp)
Seller’s Default. If Seller breaches fails to perform any of its representationsobligations under this Agreement for any reason other than Purchaser’s default, warranties, covenants and/or agreements hereunder or fails failure of a condition to consummate the purchase and sale contemplated herein by the Closing DateSeller’s obligation to close, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any the permitted termination of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified this Agreement by Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such noticePurchaser as expressly provided herein, then Purchaser shall be entitled at entitled, as its option sole remedy, either (a) to notify Seller receive the return of the election Xxxxxxx Money from Escrow Agent, and Seller shall reimburse Purchaser for Purchaser’s actual, out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred in connection with the transaction contemplated by Purchaser to terminate this Agreement, whereupon Escrow Agent up to a maximum amount of $50,000, as reasonably demonstrated to Seller (e.g., with copies of invoices, paid receipts, etc.) (such amount, the “Diligence Reimbursement”), which return and reimbursement shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect operate to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated and release Seller from any and all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required liability hereunder, Purchaser at its election shall be entitled or (b) to bring suit for enforce specific performance, inasmuch as performance of the parties recognize obligation of Seller to execute and acknowledge that deliver the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations documents required to convey the Property to Purchaser in accordance with this Agreement; it being specifically understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder. Except as set forth in the next sentence of this Section 8.2, Purchaser expressly waives its rights to seek damages in the event of the default of Seller hereunder. In the event Seller deliberately or willfully refuses or fails to consummate Closing in violation of the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, by selling the Property to a willful failure third party rather than to Purchaser, and as a result thereof specific performance is not an available remedy to Purchaser, then in addition to the remedies provided in this Section 8.2, Purchaser may bring an action against Seller for Purchaser’s actual damages incurred (but not consequential or default punitive damages) as the result of Seller is conveying the Property to such third party; provided, however, Purchaser’s damages (as proven in such action) shall not exceed the difference in the Purchase Price set forth herein and the purchase price received by Seller in a failure sale of the Property to a third party. Purchaser shall be deemed to have elected to terminate this Agreement and to receive a return of the Xxxxxxx Money from Escrow Agent if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction, on or default before sixty (60) days following the date upon which the Closing was within to have occurred. The limitations in this section do not apply to Seller’s knowledge and reasonable control to prevent. This indemnity obligations at Section 11.2 shall fully survive the expiration or earlier termination of this Agreement9.1 hereof.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Griffin Capital Essential Asset REIT, Inc.)
Seller’s Default. If Seller breaches any of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by at the Closing Date, or if, pursuant to Section 5.2 above, after any Related Seller has defaulted under any application of the Related ContractsPartial Termination Procedure the conditions to the obligation of Purchaser to consummate the Closing as set forth in Section 11 hereof have not been fulfilled on account of the default of the Sellers hereunder, nor have such conditions been waived by Purchaser, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such noticeClosing shall not occur as a result thereof, then Purchaser shall be entitled to pursue, at its option to notify Seller election, either of the election by Purchaser to following as its sole and exclusive remedy: (i) terminate this Agreement, whereupon Agreement and have the Deposit returned to it by the Escrow Agent (and in such circumstances the Sellers shall return join with Purchaser in a written instruction to Escrow Agent to pay the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations Purchaser) or (ii) seek specific performance of the Purchaser Sellers’ obligations under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if to consummate the respective Related Purchasers have also terminated all the Related Contracts due to such default). AlternativelyClosing, in the event Seller provided, however, that Purchaser shall willfully fail to close as required hereunder, Purchaser at its election shall only be entitled to bring suit the remedy of specific performance if (A) Purchaser first gives written notice to the Sellers of the Sellers’ default and Purchaser’s intention to file an action for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing performance within ten (10) day notice and cure periodBusiness Days after Purchaser first becomes aware of the default by the Sellers, (B) any suit for specific performance is filed within sixty (60) days after the scheduled Closing Date, and provided that (C) Purchaser is not in default under this Agreement. Purchaser hereby waives any right to sxx the absence Sellers, the Operating Lessee or any of their respective affiliates for damages (including consequential and punitive damages) for any default hereunder, but if the Closing occurs, subject to the provisions of Section 8 such failure waiver shall not apply to close damages to which Purchaser would have been ready, willing and able to close, Purchaser shall may be entitled to recover from Seller Purchaser’s reasonablehereunder (other than consequential and punitive damages) by reason of any breach by the Sellers of any of their covenants, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure warranties or default of Seller is a failure or default representations hereunder which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully expressly survive the expiration or earlier termination of this AgreementClosing.
Appears in 1 contract
Seller’s Default. If Seller breaches shall use reasonable efforts to cure any default by Seller in the performance of its representationsobligations under this Agreement of which Seller is given written notice by Purchaser. If, warranties, covenants and/or agreements hereunder or fails prior to consummate the purchase and sale contemplated herein by the Closing Date, or if, (a) Seller defaults in any material respect in performing any of its obligations under this Agreement (other than the obligation to consummate Closing as and when required pursuant to Section 5.2 abovethe provisions hereof, for which there shall be no notice and cure period) and Seller fails to cure any Related Seller has defaulted under such default within fifteen (15) days after notice thereof from Purchaser despite Seller’s obligation to use commercially reasonable efforts to cure such breach (which fifteen (15) day period shall, if necessary, automatically extend the Closing Date to the expiration date of such fifteen (15) day period), or (b) there shall be an inaccuracy or breach of any representation or warranty contained in Article III of this Agreement made as of the Related ContractsContract Date, and if such defaults, breaches or inaccuracies collectively constitute a Material Breach, then, as its sole and exclusive remedy, Purchaser may either (i) pursue an action for specific performance or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10ii) days of such noticeterminate this Agreement, then in which event Purchaser shall be entitled at its option to notify Seller to: (a) receive the return of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall b) be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach reimbursed by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, documented out-of-pocket due diligence and legal costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, Agreement through the “Pursuit Costs”). For purposes date of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge default (up to a maximum of $50,000) and reasonable control neither party shall have any further liabilities or obligations to prevent. This Section 11.2 shall fully the other party, except for those expressly stated to survive the expiration or earlier termination of this Agreement.
Appears in 1 contract
Seller’s Default. (i) If Seller breaches any of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by on the Closing Date, Buyer is not in default of this Agreement and not through the actions of the Buyer, (A) Seller shall be unable to give title or if, pursuant make conveyance or deliver possession of the Property as required by this Agreement or to Section 5.2 above, any Related Seller has defaulted under satisfy any of the Related Contractsterms and conditions precedent to Closing set forth herein, except for matters caused by the Buyer, its servants, agents or independent contractors, or (B) the Property does not then conform to the provisions hereof, or (C) any of Seller's warranties and representations contained herein are not fully accurate as of the Closing Date (items (A) through (C), collectively, called "Seller's Obligations"), the time for performance hereunder shall be extended for such period, not to exceed ninety (90) days, as shall be reasonably specified by Buyer, and if Purchaser Seller shall use diligent efforts to satisfy and perform all of Seller's Obligations. If other than as caused by the actions of the Buyer or its agents, servants or independent contractors, at the expiration of such extended time for performance, despite having used such diligent efforts Seller shall remain unable satisfy and perform all of Seller's Obligations, and such failure adversely affects the Buyer's title to the Property, the Buyer's intended use of the Property or the applicable Related Purchaser has notified Seller or such Related Seller market value of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such noticethe Property, then Purchaser Buyer shall be entitled have the option, at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 Buyer's sole discretion: (provided Purchaser may only elect I) to terminate this Agreement because by notice given to Seller, whereupon the Deposit, together with all interest and other sums paid by Buyer hereunder, shall be promptly refunded by Buyer and all obligations of the parties hereto shall cease and this Agreement shall be void and without recourse to the parties hereto, excluding, however, those provisions hereof which are expressly provided herein to survive termination of the Agreement (including without limitation, Buyer's indemnification of Seller as set forth in Section 5(a) hereof), or (II) Buyer shall have the election, at the original or at any extended time for Closing, to accept such title to, and possession of, the Property as Seller can deliver in its then condition and to thereupon pay the Purchase Price without any deductions, except such amount necessary to remove all mortgages, liens or encumbrances which secure the payment of money (except for those caused by the Buyer, its servants, agents or independent contractors) and such adjustments computed in accordance with Section 2(b) above, in which case Seller shall convey such title. In the event that Seller seeks relief as a default debtor under a Related Contract if any applicable law, including without limitation the respective Related Purchasers federal bankruptcy code, or upon the involuntary commencement of any such proceeding, Buyer shall have also terminated the right of possession of the Property pending the Closing and shall be entitled to any and all the Related Contracts due rights pursuant to such default11 U.S.C. ss.365(i)and (ii). AlternativelyBuyer shall have the right to obtain specific performance of this Agreement, as well as the benefit of any other rights or remedies provided herein or by applicable law, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach of any default hereunder by Seller (i.e., Seller's failure to perform its obligations hereunder where such failure is not excused by any of Seller’s obligations to convey the Property to Purchaser in accordance with the express terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreement.
Appears in 1 contract
Seller’s Default. If Seller breaches any shall default in the performance of its representationsobligations under this Agreement, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing DateSeller does not, or ifis unable to, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten five (105) business days of such noticeafter written notice to Seller, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to may elect to: (a) terminate this Agreement; or (b) treat this Agreement as being in full force and effect, whereupon Escrow Agent and Purchaser shall return have the Deposit right only to Purchaser and neither party will have any further obligation an action for specific performance, provided however, Seller is able to convey title to the other hereunderProperty to Purchaser, other than pursuant to the obligations terms hereof, but Seller intentionally and willfully fails to do so.
(a) If Purchaser elects to seek specific performance of the Purchaser under Section 4.1 (provided Purchaser may only elect this Agreement, as a further condition precedent to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring any suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is uniquePurchaser shall: (i) commence such action within thirty (30) calendar days after such default, and that there is (ii) fully perform its obligations hereunder. If Purchaser fails to fully perform all of its obligations or commence an action for specific performance within thirty (30) calendar days after such default, then this Agreement shall automatically terminate, effective as of the day immediately following such thirty (30) calendar day period. Notwithstanding the foregoing, Purchaser shall have no adequate remedy at law right to compensate fully seek specific performance, if Seller shall be prohibited from performing its obligations hereunder by reason of any law, regulation, or other legal requirement applicable to Seller.
(b) Upon the termination of this Agreement, pursuant to Section 16.02: (i) Purchaser for a breach by shall forfeit all rights and claims with respect to the Property, pursuant to this Agreement; (ii) Purchaser shall immediately send to Seller all due diligence materials, reports, studies and any other materials in its possession, related to the transaction contemplated in this Agreement and then destroy any and all copies of Seller’s obligations to convey the Property such documents; (iii) Escrow Agent shall return to Purchaser in accordance with the terms Deposit, which shall be the sole liability of Seller to Purchaser; and conditions (iv) upon the return of the Deposit, this Agreement shall be null and void, and both parties shall thereafter be released from any obligations or liabilities hereunder, except those that expressly survive termination of this Agreement. In Under no event circumstance shall Seller be liable to Purchaser be entitled to monetary damages for a failure of Seller to close hereunderany consequential, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure punitive or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreementother damages.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Seller’s Default. If Seller breaches any of its representationsIf, warranties, covenants and/or agreements hereunder on or fails to consummate the purchase and sale contemplated herein by before the Closing Date, (i) Seller is in default of any of its obligations hereunder, or if(ii) the Closing otherwise fails to occur by reason of Seller’s failure or refusal to perform its obligations hereunder in a prompt and timely manner, pursuant then Buyer may elect, as its sole and exclusive remedy, to Section 5.2 above(a) terminate this Agreement in its entirety by written notice to Seller, promptly after which the Deposit shall be returned to Buyer, and thereafter neither party to this Agreement shall have any Related Seller has defaulted further rights or obligations hereunder other than any arising under any section or provision herein that expressly provides that it survives the termination of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent or (b) waive the condition and proceed to close the Transaction, or (c) seek specific performance of this Agreement by Seller, Buyer specifically acknowledging that Buyer shall return the Deposit have no right to Purchaser and neither party will damages pursuant to this Section 10.2 or otherwise under this Agreement. As a condition precedent to exercise by Buyer of any right Buyer may have any further obligation to the other bring an action for specific performance hereunder, other than Buyer must commence such an action within ninety (90) days after the obligations occurrence of Seller’s default. Buyer agrees that its failure timely to commence such an action for specific performance within such ninety (90) day period shall be deemed a waiver by Buyer of its right to commence an action for specific performance. Notwithstanding the foregoing and notwithstanding Seller’s exercise of its right to extend the Closing as provided in Section 6.1 above, if, for any reason, Seller fails to obtain a release of the Purchaser under Section 4.1 (provided Purchaser Property from the lien of Seller’s existing debt encumbering the Property for any reason, including Seller’s determination in its discretion that satisfying the conditions for obtaining a release would be economically unreasonable, Seller may only elect to terminate this Agreement because of a default under a Related Contract if by written notice to Buyer on or before the respective Related Purchasers have also terminated all the Related Contracts due to such default). AlternativelyClosing, in which event this Agreement shall terminate in its entirety. Promptly following such termination, as Buyer’s sole and exclusive remedy, the event Deposit shall be returned to Buyer and Seller shall willfully fail to close as required hereunderreimburse Buyer for Buyer’s actual, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, reasonable out-of-pocket due diligence costs and expenses incurred in connection with the performance of this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”)Agreement in an aggregate amount not to exceed $25,000.00. For purposes hereof, satisfying the conditions for obtaining a release of the lien of Seller’s existing debt from the Property shall be deemed to be economically unreasonable if such conditions would require Seller to pay its lender (or servicer) in excess of the Purchase Price in order to obtain the release. Seller and Buyer expressly acknowledge that a breach of Seller’s Warranties arising prior to the Closing Date shall not constitute a “default” for purposes of this AgreementSection 10.2 and that the consequences of any such breach shall be governed by Section 8.3.3, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge to the extent applicable, and reasonable control to prevent. This by Section 11.2 shall fully survive the expiration or earlier termination of this Agreement8.3.5 and Section 9.2.5 above.
Appears in 1 contract
Seller’s Default. If Seller breaches any Purchaser shall have performed or tendered performance of all of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted material obligations under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return and the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement sale contemplated hereby is not consummated because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due by Seller in its obligation to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that sell the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no , then, Purchaser may, as its sole and exclusive remedy at law or in equity, either : (a) terminate this Agreement by giving written notice thereof to Seller, in which event shall the Deposit (and any Extension Fee) will be returned to Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled reimbursed by Seller for up to recover from Seller $200,000.00 of Purchaser’s reasonable, out-of-pocket due diligence costs related to this transaction and, thereafter, neither Seller nor Purchaser will have any further duties or obligations to the other hereunder except for Purchaser’s Surviving Obligations and expenses incurred any other provisions of this Agreement that expressly survive termination; (b) waive such default and consummate the transactions contemplated hereby in connection accordance with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes terms of this Agreement; or (c) specifically enforce this Agreement. Purchaser hereby irrevocably waives any other right or remedy for such default. As a condition precedent to Purchaser exercising any right to bring an action for specific performance as the result of Seller’s default hereunder, Purchaser must commence such action within sixty (60) days after the occurrence of such default. Purchaser agrees that its failure timely to commence such an action for specific performance within such sixty (60) day period shall be deemed a willful failure or default waiver by it of its right to commence such an action. Notwithstanding the foregoing, if the remedy of specific performance is not available because of any actions of Seller, Purchaser shall have any and all remedies available by law, including, without limitation, filing suit for damages. The limitations herein shall not limit the obligations of Seller is a failure pursuant to Sections 9.1 or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination 11.8 of this Agreement.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Lexicon Pharmaceuticals, Inc.)
Seller’s Default. If Seller breaches In the event that any of its Seller's representations, warranties, warranties or covenants contained in this Agreement are untrue or if Seller shall have failed to have performed any of the covenants and/or agreements hereunder contained in this Agreement which are to be performed by Seller, on or fails before the date set forth in this Agreement for the performance thereof, or if any of the conditions precedent to Buyer's obligation to consummate the purchase and sale transaction contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has this Agreement shall have failed to cure such default within ten (10) days of such noticeoccur, then Purchaser shall be entitled Buyer may, at its option to notify Seller of the election by Purchaser to terminate this Agreementoption, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because by giving written notice of a default under a Related Contract if such termination to Seller and Seller shall immediately thereafter return the respective Related Purchasers Deposit, and thereupon, subject to the provisions of Section 12.3 below, the parties shall have also terminated all no further liability to each other hereunder except as provided in Section 7.4 above. In the Related Contracts due to such default). Alternativelyalternative, in the event Seller shall willfully fail of Seller's willful default and refusal to close as required hereunder, Purchaser at its election shall be entitled Buyer may seek specific performance of Seller's obligations; provided however, any complaint seeking such specific performance must (a) allege with specificity Seller's wilful default and refusal to bring suit for close under this Agreement on the Closing Date; (b) allege with specificity that Buyer had sufficient funds to close the transaction on the Closing Date; and (c) allege that as of the date of the filing such complaint seeking specific performance, inasmuch as sufficient funds continue to be available to Buyer and will be available to Buyer for at least thirty-one (31) days following the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for entry of an order by a breach court of competent jurisdiction requiring specific performance by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of under this Agreement. In no the event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of Buyer terminates this Agreement after a willful failure default of Seller, Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, reimburse Buyer for its actual out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes entering into of this AgreementAgreement and Buyer's inspection of the Premises. Buyer acknowledges and agrees that, except as set forth in the immediately preceding sentence, under no circumstances shall Buyer have any right to seek or collect damages from Seller, its partners or the officers, directors, employees, agents or contractors of any of them, whether actual, punitive, consequential or otherwise as a willful result of Seller's failure or default refusal to close hereunder and/or as a result of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreementspecific performance hereof.
Appears in 1 contract
Seller’s Default. If BUYER’S SOLE REMEDIES. Only after this Offer is accepted by Seller breaches in writing, if at all, in Seller’s sole discretion, and, if, after written demand from Buyer, Seller falls to consummate the sale in accordance with its terms (other than by reason of (i) Buyer’s breach of any of its representations, warranties, covenants and/or agreements hereunder representations or fails warranties contained in this Offer; (ii) Buyer’s failure to consummate pay the purchase and sale contemplated herein by balance of the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under Purchase Price; (iii) Buyer’s continuing default of any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within its covenants hereunder after ten (10) days prior written notice of such notice, then Purchaser shall be entitled at its option default; (iv) a failure of any condition to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further Seller’s obligation to sell the other hereunderProperty to be satisfied; (v) a termination of this Offer by Seller or Buyer pursuant to a right to do so expressly provided for in this Offer, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because except by reason of a default under by either party; or (vi) failure by Buyer to deliver the items required to be delivered at Closing by Buyer,) Buyer may, as Buyer’s sole and exclusive remedy, terminate this Offer by written notice to Seller in which event the Xxxxxxx Money shall be refunded to Buyer, and Buyer may recover from Seller, Buyer’s actual and direct damages (out- of-pocket amounts actually paid by Buyer to third parties, but specifically excluding any internal or overhead costs or expenses of Buyer) for such failure, up to a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such defaultmaximum of Ten Thousand and no/100 U.S. Dollars ($10,000.00). AlternativelyUNDER NO CIRCUMSTANCES MAY BUYER SEEK OR BE ENTITLED TO RECOVER ANY SPECIAL, in CONSEQUENTIAL, PUNITIVE, SPECULATIVE OR INDIRECT DAMAGES, ALL OF WHICH BUYER SPECIFICALLY WAIVES, FROM SELLER FOR ANY BREACH BY SELLER OF ITS OBLIGATIONS UNDER THIS OFFER OR OF ANY REPRESENTATION, WARRANTY OR COVENANT OF SELLER HEREUNDER, NOR SHALL BUYER BE ENTITLED TO SEEK OR ENFORCE SPECIFIC PERFORMANCE OF THIS OFFER BY SELLER. BUYER SPECIFICALLY WAIVES THE RIGHT TO FILE ANY LIS PENDENS OR OTHER LIEN AGAINST THE PROPERTY. In the event Seller shall willfully fail to close as required hereunderof Seller’s default after Closing in any of its covenants in this Offer which survive Closing or under any documents delivered at Closing, Purchaser at its election shall and such default continues for more than thirty (30) days after written notice of such default from Buyer, Buyer shall, be entitled to bring suit pursue its actual and direct damages only as limited above as Buyer’s sole and exclusive remedy for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreementdefault.
Appears in 1 contract
Samples: Offer to Purchase Real Property
Seller’s Default. If Seller breaches any of its representations, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms provisions of this Agreement for any reason constituting a default on the part of Seller, then Purchaser may, as its sole remedy (to the exclusion of all other remedies, both legal and conditions equitable) elect to either (i) accept title to the Property subject to the defaulted obligation of Seller, without any abatement or reduction in the Purchase Price, or (ii) terminate this Agreement and receive a refund of the Deposit, in which case, except for any surviving obligations, this Agreement shall be null and void without further recourse to either party hereto except that Seller shall reimburse Purchaser for all of its due diligence costs (but not any financing costs or fees) incurred in connection of its pursuit of acquisition of the Property, not to exceed the sum of $100,000, or (iii) bring an action against Seller for specific performance of this Agreement. In no event Seller shall not be deemed in default hereunder until and unless Purchaser be entitled has given written notice of Seller's failure to monetary damages for a failure of Seller to close hereunder, comply with the exception terms hereof and Seller does not thereafter cure such failure within the earlier of (i) five (5) Business Days after receipt of such notice; or (ii) the Closing Date. Notwithstanding anything to the contrary contained herein, if Seller shall intentionally default hereunder in a case where Seller has transferred title to the Property to a third party or has entered into an agreement to transfer title to the Property to a third party or has otherwise taken action which renders specific performance an impracticable remedy, then Seller shall pay to Purchaser, and Purchaser shall accept from Seller, the sum of $2,000,000 as agreed and liquidated damages on account of such default, Seller and Purchaser hereby acknowledging that the actual damages incurred by Purchaser in the such case of a willful failure of Seller shall be difficult if not impossible to close hereunder after determine and the foregoing ten (10) day notice and cure period, and provided that in the absence liquidated damages constitute a reasonable estimate of such failure to close Purchaser would have been readydamages. In the event of Seller's default, willing and able to closeSeller shall also remain liable for all enforcement costs including, Purchaser shall be entitled to recover from Seller Purchaser’s reasonablebut not limited to, out-of-pocket due diligence court costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreementattorneys' fees.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland Real Estate Income Trust, Inc.)
Seller’s Default. If Subject to Section 7.3, in the event of a default by Seller breaches under the terms of this Agreement which is not cured within five (5) Business Days after written notice thereof from Buyer to Seller, Bxxxx’s sole and exclusive remedies hereunder shall be to either (a) terminate this Agreement, whereupon Buyer will receive a refund of the Exxxxxx Money from Escrow Agent (even if otherwise non-refundable hereunder), and Seller shall reimburse Buyer for all of Buyer’s out-of-pocket costs, up to one hundred thousand dollars ($200,000.00), that Buyer incurred in connection with the transaction contemplated by this Agreement (including, but not limited to, reasonable attorney’s fees and costs, due diligence costs, capitalization fees and deposits, and other out-of-pocket costs related to acquiring the Property and the Shares), and thereafter neither party hereto shall have any further obligation or liability to the other (except with respect to those provisions of its representationsthis Agreement which expressly survive the termination hereof), warranties, covenants and/or agreements hereunder Buyer hereby waiving any right or fails claim to consummate the purchase and sale contemplated herein by the Closing Datedamages for Seller’s breach, or if(b) seek specific performance of Seller’s obligations under this Agreement (but no other action, pursuant to Section 5.2 abovefor damages or otherwise, shall be permitted); provided that any Related Seller has defaulted under any of the Related Contractsaction by Buyer for specific performance must be filed, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default at all, within ten ninety (1090) days of the earlier of the date of Seller’s default, or the scheduled Closing Date; and the failure to file within such notice, then Purchaser period shall be entitled at its option to notify constitute a waiver by Buyer of such right and remedy. If Buyer shall not have filed an action for specific performance within the aforementioned time period or so notified Seller of the its election by Purchaser to terminate this Agreement, whereupon Escrow Agent Buyer’s sole remedy shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect be to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternativelyin accordance with clause (a) above; provided, however, in the event specific performance is unavailable to Buyer because Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey has sold the Property to Purchaser a third party in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes violation of this Agreement, a willful failure or default of in addition to the remedies set forth in clause (a) above, Buyer shall also be entitled to receive from Seller is a failure or default damages in the amount equal to the difference between the Purchase Price and the price for which was within Seller’s knowledge and reasonable control Seller sold the Property to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreementsuch third party.
Appears in 1 contract
Samples: Purchase and Sale Agreement (1st stREIT Office Inc.)
Seller’s Default. If at the Closing, any Seller breaches any is unable to satisfy all of its representationsobligations as set forth in this Agreement, warrantiesand Buyer does not elect to take title as provided in Section 14.01, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by then Seller may extend the Closing Date, or if, pursuant Date for all (but not less than all) Properties for which closing has not previously occurred for up to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such noticeduring which period Seller will use commercially reasonable efforts to cure the default. If Seller does not so extend the Closing Date or extends the Closing Date but subsequently fails to cure the defect, then Purchaser as Buyer's sole and exclusive remedy (except for the alternative remedy of specific performance set forth below in this Section 14.02), (i) the Deposit allocated to the Properties for which this Agreement is terminated shall be entitled at its option forthwith returned to notify Seller of the election by Purchaser to terminate this AgreementBuyer, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at reimburse Buyer for its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonableactual, out-of-pocket due diligence costs and expenses reasonably incurred in connection with the transaction contemplated by this AgreementAgreement up to a maximum amount of $500,000.00, including reasonable attorney’s fees prorated among the Properties in the same proportion as the Purchase Price is allocated among the Properties, and (collectivelyii) this Agreement will thereupon terminate with respect to all but not less than all of the Properties for which Closing has not yet occurred. In the alternative to the foregoing, if Buyer desires to purchase all (but not less than all) the “Pursuit Costs”). For purposes Properties in accordance with the terms of this AgreementAgreement and any Seller intentionally refuses to perform Seller's obligations hereunder, a willful failure or default Buyer, at its option, and as Buyer's sole and exclusive remedy, shall have the right to compel specific performance by such Seller hereunder in which event any applicable portion of the Deposit made hereunder shall be delivered to the applicable Seller is a failure or default which was within at Closing in accordance with the allocation set forth at Section 2.03 and credited against the Purchase Price due such Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Brookdale Senior Living Inc.)
Seller’s Default. If Seller breaches any of its representationsIn the event Purchaser discovers, warranties, covenants and/or agreements hereunder or fails prior to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under that (a) any of the Related Contracts, representations and if Purchaser or the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to cure such default within ten (10) days of such notice, then Purchaser shall be entitled at its option to notify Seller warranties set forth in Section 10.01 hereof are false as of the election by Purchaser to terminate Effective Date of this Agreement, whereupon or (b) Seller shall default in the performance of (i) any of its material obligations to be performed on the Closing Date or (ii) any of its material obligations to be performed prior to the Closing Date and, with respect to any default under this clause (ii) only, such default shall not be cured on or prior to the earlier to occur of the date that is five (5) Business Days after written notice to Seller, Seller’s attorney and Escrow Agent shall return or the Deposit Closing Date, then Purchaser’s sole and exclusive remedy by reason thereof (in lieu of prosecuting an action for damages or proceeding with any other legal or equitable course of conduct, the right to Purchaser bring such actions or proceedings being expressly and neither party will have any further obligation voluntarily waived by Purchaser, to the other hereunderextent legally permissible, other than the obligations following and upon advice of the Purchaser under Section 4.1 (provided Purchaser may only elect its counsel) shall be to terminate this Agreement because and receive the Downpayment. If, however, Seller is able to convey title to the Property to Purchaser pursuant to the terms hereof but Seller intentionally and willfully fails to do so, then Purchaser may either (1) terminate this Agreement and receive the Downpayment or (2) seek to obtain specific performance of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to Seller’s obligations hereunder, provided that any action for specific performance shall be commenced within thirty (30) days after such default). Alternatively; it being understood and agreed that if Purchaser fails to commence an action for specific performance within thirty (30) days after such default, in then this Agreement shall automatically terminate, effective as of the event Seller shall willfully fail to close as required hereunderday immediately following such thirty (30) day period, Purchaser at its election and thereupon the Downpayment shall be entitled returned to bring Purchaser, and the parties hereto shall be released of all obligations and liabilities of whatsoever nature in connection with this Agreement except those that expressly survive termination of this Agreement. If Purchaser elects to seek specific performance of this Agreement, then as a condition precedent to any suit for specific performance, inasmuch Purchaser shall on or before the Closing Date, time being of the essence, fully perform all of its obligations hereunder which are capable of being performed (other than the payment of the Purchase Price, which shall be paid as and when required by the parties recognize court in the suit for specific performance). Upon the termination of this Agreement and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller return of Seller’s obligations to convey the Property Downpayment to Purchaser in accordance with the terms and conditions this Section 18.02, neither party shall have any obligations or liabilities hereunder except those that expressly survive termination of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with Notwithstanding the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to closeforegoing, Purchaser shall have no right to seek specific performance, if Seller shall be entitled prohibited from performing its obligations hereunder by reason of any law, regulation, or other legal requirement applicable to recover from Seller. Under no circumstance shall Seller Purchaser’s reasonablebe liable to Purchaser for any consequential, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure punitive or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreementother damages.
Appears in 1 contract
Seller’s Default. If Seller breaches fails to perform any of its representationsSeller's obligations under this Agreement for any reason other than (i) the termination of this Agreement by Seller or Purchaser pursuant to any right to terminate expressly set forth in this Agreement (other than this Section), warrantiesor (ii) Purchaser's failure to perform Purchaser's obligations when required to be performed under this Agreement, covenants and/or agreements hereunder and such default by Seller (other than default in performance due at Closing, for which there is no notice or fails to consummate the purchase and sale contemplated herein cure right) is not cured by the sooner of Closing Dateor five (5) business days after Purchaser gives Seller written notice of such default, or ifif any of Seller's representations or warranties set forth in this Agreement are found to be materially inaccurate or untrue prior to or at Closing, pursuant then Purchaser, at Purchaser's option and (except as set forth below) as Purchaser's sole and exclusive remedy, shall have the right.
(i) to terminate this Agreement by giving written notice thereof to Seller, whereupon all Xxxxxxx Money shall be refunded to Purchaser free and clear of all rights and claims of Seller with respect thereto, and neither Purchaser (except as provided below in this Section 5.2 above10(a)) nor Seller shall have any further rights or obligations hereunder except for the Surviving Duties; or
(ii) to enforce specific performance of the obligations of Seller under this Agreement and collect from Seller in such proceeding all of Purchaser's costs of court and legal fees incurred in connection therewith. The foregoing remedies are, however, in addition to Purchaser’s rights, as they may exist at law, to obtain injunctive or equitable relief to prevent Seller’s breach, threatened breach or continued breach of any Related pre-Closing covenant of Seller under this Agreement, or to obtain declaratory judgment relief where applicable. Regardless of which remedy is selected by Purchaser, if Seller has defaulted under made a material misrepresentation or materially breached a warranty contained in this Agreement, then Purchaser shall also be entitled to recover from Seller any damages suffered by Purchaser by reason thereof subject to the limitations set forth below; provided, however, that any suit or action for breach of any of the Related Contractsrepresentations or warranties of Seller set forth herein must be filed with a court of competent jurisdiction within the Survival Period or any claim based thereon shall be deemed irrevocably waived. Unless expressly made to survive, all other obligations and covenants of Seller contained in this Agreement shall be deemed to have been merged into the Deed and shall not survive the Closing. Notwithstanding the foregoing, however, if actions taken by Seller make it impractical or impossible for Purchaser or to obtain the applicable Related Purchaser has notified Seller or such Related Seller substantial benefit of such default and Seller or such Related Seller has failed to cure such default within ten (10) days its bargain by enforcement of such noticespecific performance against Seller, then Purchaser shall be entitled as an additional remedy (unless and until it elects option (2) hereof) to recover from Seller damages in the amount of its out of pocket costs and expenses in connection with this Agreement not to exceed One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) plus its other proven damages not to exceed an additional One Hundred Fifty Thousand Dollars ($150,000.00). The foregoing provisions do not govern the remedies of the parties after Closing with regard to obligations and liabilities of the parties under this Agreement which survive Closing, or arising under documents delivered by the parties to consummate the Closing of this transaction, such as claims under a warranty of title in the Deed, etc. If Purchaser notifies Seller within one (1) year after Closing (the “Survival Period”) that Purchaser discovered post-Closing that any representation or warranty made by Seller in this Agreement was not true and correct in any material respect and specifying the breach with particularity, subject to the limitations set forth below, Purchaser shall have available all remedies at its option to law or in equity as a consequence thereof. If Purchaser does not notify Seller of the election by Purchaser to terminate breach of any of its representations and warranties set forth in this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser Agreement and neither party will have any further obligation institute a lawsuit therefor in a court of competent jurisdiction prior to the other hereunder, other than the obligations expiration of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if Survival Period after the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunderClosing, Purchaser at its election shall be entitled deemed to bring suit have waived all of its rights to claim and xxx for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a any breach by Seller of Seller’s obligations to convey the Property to Purchaser any of its representations and warranties made in accordance with the terms and conditions of this Agreement. In Further, Purchaser agrees that any recovery against Seller in respect of Seller’s covenants, indemnities, representations or warranties hereunder or under any other agreement, document, certificate or instrument delivered by Seller to Purchaser hereunder at Closing other than claims under the Indemnity Agreement and the Deed, or under any law applicable to the Property or this transaction, shall be limited to Purchaser’s actual damages (including consequential damages if and to the extent permitted by law) not in excess of ten percent (10%) of the Purchase Price paid to Seller at Closing in the aggregate for all such claims collectively, and that in no event shall Purchaser be entitled to monetary seek or obtain any other damages for a failure of Seller to close hereunderany kind, with including, without limitation, speculative or punitive damages, or actual or consequential damages in excess of the exception stated cap. It is acknowledged that this cap applies in the case aggregate to all damages collectively. The aforesaid cap on Purchaser’s recoverable damages shall not apply to (and shall exclude) Seller’s indemnity obligations in the Indemnity Agreement, Seller’s warranty of a willful failure of Seller to close hereunder after title in the foregoing ten (10) day notice and cure periodDeed, Seller’s post-Closing proration adjustment obligations, and provided that in the absence reasonable attorneys’ fees, costs of such failure to close Purchaser would have been readylitigation, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreementcourt costs.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Orion Marine Group Inc)
Seller’s Default. If Seller breaches (i) Upon discovery by Purchaser of any defect with respect to an Acquired Asset, or that an Acquired Asset was not duly transferred by Sellers, or of a breach of any representation or warranty provided by Sellers to Purchaser on the Closing Date in respect of the Acquired Assets which adversely affects Purchaser’s ability to collect any amount due thereunder or which affects the value thereof, then within 180 days of its representations, warranties, covenants and/or agreements hereunder or fails receipt of notice of such breach (which notice from Purchaser must be delivered to consummate the purchase and sale contemplated herein by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any of the Related Contracts, and if Purchaser or Sellers no later than 180 days after the applicable Related Purchaser has notified Seller or such Related Seller of such default and Seller or such Related Seller has failed to Closing), Sellers shall either (i) cure such default within ten defect or breach or, (10ii) days of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller Sellers cannot cure such defect or breach within such time frame, Sellers shall willfully fail to close as required hereunder, Purchaser repurchase the affected Acquired Asset at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”)Repurchase Price. For purposes of this Agreement, the “Repurchase Price” for any Acquired Asset shall be equal to the Purchase Price paid by Purchaser therefor at Closing with the following adjustments made thereto: with respect to any Manufactured Home Loan, (i) a willful failure reduction equal to the amount of any principal made to Purchaser (or default its successors or assigns) in service of Seller is such Home Loan since the applicable Closing Date and (ii) a failure reduction or default which was within Seller’s knowledge and reasonable control increase to preventreflect changes in insurance or tax escrow balances from the date of Closing and, with respect to any Inventory Home, an increase to reflect any costs expended by Purchaser in connection with repairs, refurbishment or maintenance of such Inventory Home. This Section 11.2 Notwithstanding anything contained in this Agreement or any document delivered in connection with this Agreement to the contrary, (i) Sellers shall fully survive have no obligation to repurchase any Home Loan unless it has received written or e-mail notice of its repurchase obligation in accordance with the expiration or earlier termination terms of this paragraph (time being of the essence) and (ii) neither the Indemnification Deductible nor the Indemnification Cap shall in any way limit or otherwise affect Sellers’ repurchase obligations under this Section 8(A) and any repurchased Acquired Assets will not be included in determining the Indemnification Deductible or Indemnification Cap amounts.
(ii) As to all other breaches by Sellers of Sellers’ obligations under this Agreement, Purchaser shall be entitled to the exercise the remedies enumerated in the Park Purchase Agreement as to such breaches.
(iii) It is understood and agreed that the obligations of Sellers set forth in this Section 8(A) to cure or repurchase a defective Acquired Asset shall constitute the sole remedies of Purchaser against Sellers respecting the defaults in this Section 8(A).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Equity Lifestyle Properties Inc)
Seller’s Default. A. If the closing of the Property is consummated, then the following shall apply: the representations and warranties of Seller set forth in Section 5will survive the Closing for a period of nine (9) months. Purchaser will not have any right to bring any action against Seller as a result of any untruth or inaccuracy of such representations and warranties, unless and until the aggregate amount of all liability and losses arising out of any such untruth or inaccuracy, exceeds $25,000.00, and then only to the extent of such excess. In addition, in no event will Seller's liability for all such breaches exceed, in the aggregate, $500,000.00. Seller shall have no liability with respect to any of its Seller's representations, warrantieswarranties and covenants herein if, covenants and/or agreements hereunder or fails prior to consummate the purchase and sale contemplated herein by the Closing Date, Purchaser has actual knowledge of any breach of a representation, warranty or ifcovenant of Seller herein, or Purchaser obtains actual knowledge (from whatever source, including, without limitation, any tenant estoppel certificates, as a result of Purchaser's due diligence or written disclosure by Seller or Seller's agents and employees) that contradicts any of Seller's representations and warranties herein, and Purchaser nevertheless consummates the transaction contemplated by this Agreement.
B. If the closing of the Property is not consummated due to Seller's failure or refusal to perform its obligations under this Contract, Purchaser shall be entitled, as its sole remedy in respect of such default, either (a) to terminate this Contract and to receive the return of the Deposit and Seller shall reimburse Purchaser its reasonable out of pocket expenses incurred or arising pursuant to Section 5.2 abovethis Contract up to a maximum of Fifty Thousand and 00/100 Dollars ($50,000.00), any Related or (b) to enforce specific performance of this Agreement. Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Deposit, if Purchaser fails to file suit for specific performance against Seller has defaulted under any in a local or federal court with jurisdiction over the parties, on or before thirty (30) days following the earlier to occur of: (i) the date upon which closing was to have occurred or (ii) the date that either party terminates this Agreement in writing.
C. Notwithstanding anything herein to the contrary, if (i) the closing of the Related ContractsProperty is not consummated due to Seller's failure or refusal to perform its obligations under this Contract (and not excused by reason of Purchaser’s failure or refusal to perform its obligations under the Contract), and if Purchaser or the applicable Related Purchaser has notified (ii) such Seller or such Related Seller of such default is willful and Seller or such Related Seller has failed to cure such default within ten intentional, and (10iii) days of such noticespecific performance is not a commercially reasonable available remedy, then Purchaser shall be entitled at its option have the right to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have pursue any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser or in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunderequity, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure periodincluding, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreementwithout limitation, a willful failure or claim for money damages, provided, however, in such event Seller's liability for such default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this Agreementnot exceed $250,000.00.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wheeler Real Estate Investment Trust, Inc.)
Seller’s Default. If (a) any Seller defaults under or breaches any of its representationsthe material covenants, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by the Closing Dateobligations of such Seller under this Agreement, or if(b) any representation or warranty made by such Seller is untrue in any material respect when made, pursuant to Section 5.2 above, or (c) any Related Seller has defaulted under any does not consummate all of the Related Contracts, and if Purchaser Transactions for any reason other than Buyer’s default or the applicable Related Purchaser has notified permitted termination of this Agreement by any Seller or Buyer as herein expressly provided, and, in each instance, such Related Seller of such default and Seller or such Related Seller has failed to cure such default within matter continues for ten (10) days of following notice from Buyer thereof (such noticeperiod to run concurrently with the notice and cure provisions set forth in Sections 7.3 and 8.3.3), then Purchaser Buyer shall be entitled at entitled, as its option sole and exclusive remedy, to notify Seller (i) receive the return of the election by Purchaser to terminate this Agreement, whereupon Deposit from Escrow Agent and Sellers shall return the Deposit promptly pay to Purchaser and neither Buyer up to $375,000.00 for any third party will out- of-pocket expenses actually incurred by Buyer in connection with Buyer’s due diligence (collectively, “Buyer’s Diligence Costs”), in which event no party hereto shall have any further obligation to the other hereunderrights, other than the duties, obligations of the Purchaser and/or liabilities under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternativelyexcept for those rights, in the event Seller shall willfully fail to close as required hereunderduties, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge obligations and/or liabilities that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully expressly survive the expiration or earlier termination of this Agreement; (ii) maintain an action for specific performance (including without limitation, reasonable attorneys’ fees and court costs); (iii) waive said breach or failure and proceed to Closing without abatement of or credit against the Purchase Price, or (iv) terminate this Agreement as to the Individual Property(ies) owned by such defaulting Seller(s) only and proceed to Closing as to the remaining Properties for the allocated Purchase Price for such remaining Properties. Buyer waives its right to seek damages for any Seller default hereunder unless Sellers, through any Seller’s willful or bad faith action(s), have rendered ineffective the right of Buyer to pursue the remedy of specific performance, in which case, notwithstanding anything to the contrary contained in this Section 11.1.1, Buyer may pursue an action or claim for actual monetary damages against Sellers. Buyer shall be deemed to have elected the remedy set forth in clause (i) of this Section 11.1.1 if Buyer does not file suit for specific performance in a court having jurisdiction in the State of Maryland, and serve Sellers, within thirty (30) days following the date upon which Closing was to have occurred. Such action for specific performance will not be construed to require any Seller to cure any title or survey defect, including any Title Exceptions, encumbrances or liens (unless such Seller is otherwise obligated to do so under this Agreement), cure any untrue representations, cure any physical condition existing at a Seller’s Individual Property or cause any third party to take any action with respect to the Property or Seller. Nothing contained in this Section 11.1.1 shall limit Buyer’s rights against any Seller by reason of any indemnity obligations of such Seller to Buyer expressly set forth in this Agreement that survives the termination of this Agreement or the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Washington Real Estate Investment Trust)
Seller’s Default. (i) If Seller breaches any of its representationsshall be unable, warranties, covenants and/or agreements hereunder or fails to consummate the purchase and sale contemplated herein by on the Closing Date, to give title or if, pursuant make conveyance or deliver possession of the Property as required by this Agreement or to Section 5.2 above, any Related Seller has defaulted under satisfy any of the Related Contractsterms and conditions precedent to Closing set forth herein, or if the Property does not then conform to the provisions hereof, or if any of Seller's warranties and representations contained herein are not correct as of the Closing Date, the time for performance hereunder shall be extended for such period, not to exceed ninety (90) days, as shall be reasonably specified by Buyer, and if Purchaser Seller shall use diligent efforts to give title or make conveyance or deliver possession as provided herein, or to satisfy such terms and conditions, to make the applicable Related Purchaser has notified Seller Property conform to the provisions hereof, or to cure the inaccuracy in such Related Seller warranty or representation, as the case may be. If, at the expiration of such default extended time for performance, despite having used such diligent efforts Seller shall fail to convey title, or deliver possession, or make the Property conform, or if any of Seller's warranties and Seller or such Related Seller has failed to cure such default within ten (10) days representations contained herein are not correct as of such noticeextended time, as the case may be, then Purchaser Buyer shall be entitled have the option, at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 Buyer's sole discretion: (provided Purchaser may only elect A) to terminate this Agreement because by notice given to Seller, whereupon all sums paid by Buyer hereunder shall be promptly refunded by Buyer and all obligations of the parties hereto shall cease and this Agreement shall be void and without recourse to the parties hereto, excluding, however, those provisions hereof which are expressly provided herein to survive termination of the Agreement, or (B) to accept title to the Property as provided in Section 7(a)(ii) below. In the event that Seller seeks relief as a default debtor under a Related Contract if any applicable law, including without limitation the respective Related Purchasers federal bankruptcy code, or upon the involuntary commencement of any such proceeding, Buyer shall have also terminated the right of possession of the Property pending the Closing and shall be entitled to any and all the Related Contracts due rights pursuant to such default11 U.S.C. ss.365 (i) and (ii). AlternativelyBuyer shall have the right to obtain specific performance of this Agreement, as well as the benefit of any other rights or remedies provided herein or by applicable law, in the event of any default hereunder by Seller (i.e., Seller's failure to perform its obligations hereunder where such failure is not excused by any of the express terms of this Agreement).
(ii) Buyer shall willfully fail have the election, at the original or at any extended time for Closing, to close as required hereunder, Purchaser at its election shall be entitled accept such title to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that possession of the Property is uniqueas Seller can deliver in its then condition and to thereupon pay the Purchase Price without any deductions, except such amount necessary to remove all mortgages, liens or encumbrances which secure the payment of money and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser such adjustments computed in accordance with Section 2(d) above, in which case Seller shall convey such title. Notwithstanding the terms foregoing, however, if the Property has been damaged by fire or other casualty or by eminent domain and conditions is not fully repaired at the time of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure the Closing, Buyer shall, at Buyer's sole option, either: (A) receive an assignment of any insurance proceeds or condemnation awards recovered or recoverable by Seller arising from fire or other casualty to, or condemnation of, the Property which have not been applied by Seller to close hereunderrestore the Property, with or (B) receive a deduction from the exception that Purchase Price in the amount of such proceeds or award and any applicable deductible, and in either case shall receive an assignment of a willful failure of Seller's contract rights against any contractor engaged by Seller to close hereunder after repair the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, out-of-pocket due diligence costs and expenses incurred in connection with this Agreement, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination of this AgreementImprovements.
Appears in 1 contract
Seller’s Default. If Seller breaches any of its representations, warranties, covenants and/or agreements hereunder (i) refuses or fails to consummate the purchase transaction contemplated by this Agreement, or (ii) otherwise wrongfully fails to perform any of its obligations or agreements hereunder, either prior to or at Closing, for any reason other than termination hereof pursuant to a right granted to Seller hereunder to do so, then Purchaser shall give Seller and sale contemplated herein the Title Company written notice specifying the nature of the default, and Seller shall have fifteen (15) days from receipt of Purchaser's notice within which to cure the specified default; provided, however, if at the end of said fifteen (15) day period Seller is diligently pursuing the cure of the default but the default has not been cured, Seller shall have an additional period not to exceed fifteen (15) days within which to complete the cure of the default. If at the end of the initial fifteen (15) or, if applicable, additional fifteen (15) day period, the default is still not cured, the Purchaser, as its sole remedy, shall have the right to do any one or more of the following:
(a) terminate this Agreement by written notice given to Seller and the Title Company within fifteen (15) days of the expiration of the initial fifteen (15) or additional fifteen (15) day cure period (whichever is applicable), in which event (i) the Xxxxxxx Money shall be returned to Purchaser by the Closing Date, or if, pursuant to Section 5.2 above, any Related Seller has defaulted under any Title Company promptly upon receipt of the Related Contractssuch notice, and if Purchaser or the applicable Related Purchaser has notified (ii) Seller or such Related Seller of such default and Seller or such Related Seller has failed shall pay to cure such default Purchaser, within ten (10) days following written demand from Purchaser, the amount of such notice, then Purchaser shall be entitled at its option to notify Seller of the election by Purchaser to terminate this Agreement, whereupon Escrow Agent shall return the Deposit to Purchaser and neither party will have any further obligation to the other hereunder, other than the obligations of the Purchaser under Section 4.1 (provided Purchaser may only elect to terminate this Agreement because of a default under a Related Contract if the respective Related Purchasers have also terminated all the Related Contracts due to such default). Alternatively, in the event Seller shall willfully fail to close as required hereunder, Purchaser at its election shall be entitled to bring suit for specific performance, inasmuch as the parties recognize and acknowledge that the Property is unique, and that there is no adequate remedy at law to compensate fully Purchaser for a breach by Seller of Seller’s obligations to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement. In no event shall Purchaser be entitled to monetary damages for a failure of Seller to close hereunder, with the exception that in the case of a willful failure of Seller to close hereunder after the foregoing ten (10) day notice and cure period, and provided that in the absence of such failure to close Purchaser would have been ready, willing and able to close, Purchaser shall be entitled to recover from Seller Purchaser’s reasonable, reasonable out-of-pocket due diligence costs and expenses incurred by Purchaser in connection with this Agreementits inspection and investigation of the Property and the preparation, including reasonable attorney’s fees (collectively, the “Pursuit Costs”). For purposes negotiation and execution of this Agreement, a willful failure or default of Seller is a failure or default which was within Seller’s knowledge and reasonable control to prevent. This Section 11.2 shall fully survive the expiration or earlier termination ; or
(b) seek specific performance of this Agreement. Notwithstanding the foregoing, in the event of any default by Seller under this Agreement due to a material breach after Closing or any termination hereof of any covenant or indemnity which survives the Closing or any termination hereof, or if Purchaser shall discover after Closing that any warranty or representation made by Seller herein or in connection with the transaction contemplated herein was materially incorrect or breached when made, Purchaser shall have any and all rights and remedies available at law or in equity by reason of such default. Neither Purchaser's nor Seller's attendance or appearance at Closing shall be deemed to nullify or void the provisions of this Section.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Harrahs Entertainment Inc)
