Common use of Seller’s Pre-Closing Default Clause in Contracts

Seller’s Pre-Closing Default. In the event of a Seller breach or default under this Agreement (a “Seller Breach”) prior to the Close of Escrow which remains uncured after notice from Buyer for a period of two (2) business days, then upon the written election of Buyer given to Seller and Escrow Holder: 14.3.1 Buyer may proceed to Closing and waive the Seller Breach, without any adjustment to the Purchase Price (other than as may be applicable pursuant to Section 14.2.1 above); or 14.3.2 Buyer may terminate this Agreement, whereupon the rights and obligations of Buyer and Seller shall terminate, except as and to the extent specifically provided otherwise in this Agreement, and: (a) Escrow Holder shall promptly deliver the Deposit to Buyer, together with any interest earned on it while held by Escrow Holder, and in addition Escrow Holder is instructed to return to Buyer and Seller all other documents and other items deposited by them, respectively, into Escrow that are then held by Escrow Holder; and (b) Seller shall reimburse Buyer for Pursuit Costs; and (c) Seller shall be solely responsible for the payment of any Cancellation Charges; or 14.3.3 Buyer may enforce specific performance of this Agreement against Seller, provided that Buyer shall only have the right to file an action for specific performance and file a lis pendens only if (i) all conditions precedent for Seller’s benefit have been fulfilled in all material respects or waived in writing (provided, however, that Buyer’s proof of funds from a bank with a United States office (which proof of funds may include, to the extent applicable, reasonable confirmation from any lender that any required funds from such lender shall be wire transferred into Escrow upon Seller’s delivery of the items described in Sections 10 and 11 shall be deemed to satisfy the requirement for funding as a condition precedent to Closing); (ii) Buyer is not in material breach of any of its material obligations under this Agreement, which is continuing beyond five (5) business days following Buyer’s receipt of written notice thereof from Seller, and (iii) any action for specific performance shall be filed within forty-five (45) days after the date otherwise scheduled for Close of Escrow. With respect to subitem (i) of this Section 14.3.3, Buyer (a) in no event shall be required to deposit an amount equal to the Purchase Price in order to satisfy such condition, but shall be obligated to demonstrate the availability of such funds promptly within one (1) business day; and (b) if deposited with Escrow Holder such Purchase Price shall be released back to Buyer immediately upon Buyer’s request for same to Escrow Holder. BUYER WAIVES ALL OTHER RIGHTS TO FILE ANY ACTION FOR SPECIFIC PERFORMANCE OR TO FILE A LIS PENDENS. Notwithstanding anything to the contrary hereinabove provided, in the event Buyer elects to pursue an action for specific performance in compliance with the foregoing and if such action is unsuccessful (not as a result of a Buyer default of its obligations under this Agreement or a failure of conditions precedent that do not constitute a Seller default) or subsequently is withdrawn by Buyer, then this Agreement shall terminate and the terms set forth in Section 14.3.2(b) above shall be applicable. Failure to file an action for specific performance within the time period permitted pursuant to this Section 14.3.3 shall be deemed an election for Section 14.3.2. Notwithstanding anything to the contrary contained herein, in the event specific performance with respect to Seller’s obligation to convey the Property pursuant to and in accordance with this Agreement is not an available remedy as a result of Seller’s conveyance of the Property (or any portion thereof) to another person or entity, then Buyer may pursue the right to seek to recover any and all damages provided Buyer’s damages shall be limited to any amounts received by Seller in excess of the Purchase Price and all enforcement costs per Section 24. 14.3.4 The terms of this Section 14.3 shall survive the termination of this Agreement.

Seller’s Pre-Closing Default. In the event of a Seller any breach or default by Seller under this Agreement (a “Seller Breach”) that occurs or is otherwise discovered prior to the Close Closing (including a breach by Seller of Escrow which remains uncured after notice from Buyer any of its representations and warranties hereunder or Seller’s failure or refusal to perform its obligations hereunder), then CWI, as its sole remedy for a period of two (2) business dayspre-Closing default, then upon the written election of Buyer given may elect either to Seller and Escrow Holder: 14.3.1 Buyer may proceed to Closing and waive the Seller Breach, without any adjustment to the Purchase Price (other than as may be applicable pursuant to Section 14.2.1 above); or 14.3.2 Buyer may terminate this Agreement, whereupon the rights and obligations of Buyer and Seller shall terminate, except as and to the extent specifically provided otherwise in this Agreement, and: (a) terminate this Agreement by written notice to Seller whereupon this Agreement shall automatically terminate, Escrow Holder Agent shall promptly deliver immediately return the Good Faith Deposit (including all interest thereon) and, if such breach or default is material, obtain reimbursement from Seller of CWI’s actual third party, out of pocket expenses incurred in this transaction up to Buyer, together with any interest earned on it while held by Escrow Holder, and in addition Escrow Holder is instructed to return to Buyer and Seller all other documents and other items deposited by them, respectively, into Escrow that are then held by Escrow Holdera maximum of Three Hundred Fifty Thousand Dollars ($350,000.00); and or (b) Seller shall reimburse Buyer maintain an action for Pursuit Costsspecific performance; and (c) Seller shall be solely responsible for the payment of provided, however, that if CWI elects to pursue any Cancellation Charges; or 14.3.3 Buyer may enforce specific performance of this Agreement against Seller, provided that Buyer shall only have the right to file an action for specific performance and file a lis pendens only if (i) all conditions precedent for Seller’s benefit have been fulfilled in all material respects or waived in writing (provided, however, that Buyer’s proof of funds from a bank with a United States office (which proof of funds may include, to the extent applicable, reasonable confirmation from any lender that any required funds from such lender shall be wire transferred into Escrow upon Seller’s delivery of the items described in Sections 10 and 11 shall be deemed to satisfy the requirement for funding as a condition precedent to Closing); (ii) Buyer remedy is not in material breach of any of its material obligations under this Agreement, which is continuing beyond five (5) business days following Buyer’s receipt of written notice thereof from Seller, and (iii) any action for specific performance shall be filed within forty-five (45) days after the date otherwise scheduled for Close of Escrow. With respect to subitem (i) of this Section 14.3.3, Buyer (a) in no event shall be required to deposit an amount equal to the Purchase Price in order to satisfy such condition, but shall be obligated to demonstrate the availability of such funds promptly within one (1) business day; and (b) if deposited with Escrow Holder such Purchase Price shall be released back to Buyer immediately upon Buyer’s request for same to Escrow Holder. BUYER WAIVES ALL OTHER RIGHTS TO FILE ANY ACTION FOR SPECIFIC PERFORMANCE OR TO FILE A LIS PENDENS. Notwithstanding anything to the contrary hereinabove provided, in the event Buyer elects to pursue an action for specific performance in compliance with the foregoing and if such action is unsuccessful (not as a result of a Buyer default of its obligations under this Agreement available or a failure of conditions precedent that do not constitute a Seller default) or subsequently is withdrawn enforceable by Buyer, then this Agreement shall terminate and the terms set forth in Section 14.3.2(b) above shall be applicable. Failure to file an action for specific performance within the time period permitted pursuant to this Section 14.3.3 shall be deemed an election for Section 14.3.2. Notwithstanding anything to the contrary contained herein, in the event specific performance with respect to Seller’s obligation to convey the Property pursuant to and in accordance with this Agreement is not an available remedy CWI as a result of Seller’s conveyance sale of the Property (or any portion thereof) to another person or entitya bona fide third party, then Buyer may pursue CWI shall nevertheless have the right to seek to recover any terminate this Agreement and pursue all damages provided Buyer’s damages rights and remedies afforded CWI (under clause (a) and otherwise). Notwithstanding the foregoing, no breach or default by Seller of its representations and warranties shall be limited deemed to have occurred when made as of the Effective Date hereunder if, between the Effective Date and the Closing Date, (i) circumstances change as a result of transactions or other actions that are expressly permitted by this Agreement; or (ii) changes in fact occur after the Effective Date beyond the reasonable control of Seller and which do not constitute or result from (x) the willful acts or omissions of Seller (taken or omitted to be taken for the purpose of making such Seller Representation untrue) or (y) a breach of Seller’s covenants under this Agreement (for example purposes only, such circumstances which do not constitute a breach may include, without limitation, a default by any party other than Seller, Hotel Manager or any of their respective Affiliates to any amounts received by Seller in excess agreement relating to the Property; subsequently filed litigation relating to Seller’s ownership of the Purchase Price Property prior to Closing; changes in Bookings; or the Employees); provided, however, that if the changes in the representations and all enforcement costs per warranties of Seller described in clauses (i) and (ii) above (in the aggregate), without taking into account any claims, actions, litigation, lawsuits or other legal proceedings filed or alleged by any Employee or any other third party that are subject to Seller’s indemnification obligations under Section 24. 14.3.4 The terms 5.4 of this Section 14.3 Agreement (but only to the extent and in the amount actually covered by such indemnity), reduce the value of the Property after the Closing by Two Hundred Thousand Dollars ($200,000) or more, CWI shall have the right to terminate this Agreement by delivery of written notice to Seller whereupon Escrow Agent shall immediately return the Good Faith Deposit (including all interest thereon) to CWI and, in which event, except for the provisions in this Agreement that expressly survive the termination of this Agreement, this Agreement shall be void and of no further force and effect, and neither Party shall have any liability to the other by reason hereof.

Seller’s Pre-Closing Default. In the event of a Seller breach or default under this Agreement (a “Seller Breach”) prior to the Close of Escrow which remains uncured after notice from Buyer for a period of two ten (210) business daysdays (except with respect to Seller’s failure to close the transaction contemplated by this Agreement on the Closing Date, then upon in which case there shall be no cure period), during which the Closing Date shall be extended as necessary to permit the running of the full ten (10) day cure period, Buyer may elect by written election of Buyer notice given to Seller and Escrow HolderHolder to either: 14.3.1 Buyer may proceed to Closing and waive the Seller Breach, without any adjustment to the Purchase Price (other than as may be applicable pursuant to Section 14.2.1 above); or 14.3.2 Buyer may terminate Terminate this Agreement, whereupon the rights and obligations of Buyer and Seller shall terminate, except as and to the extent specifically provided otherwise in this Agreement, and: and (a1) Seller shall promptly reimburse Buyer for all actual out of pocket costs and expenses incurred in connection with the transaction contemplated by this Agreement in the aggregate amount of up to One Hundred Thousand and No/100 Dollars ($100,000.00), (2) Escrow Holder shall promptly deliver the Deposit (less the Review Consideration) to Buyer, together with any interest earned on it while held by Escrow Holder, and in addition Escrow Holder is instructed to return to Buyer and Seller all other documents and other items deposited by them, respectively, into Escrow that are then held by Escrow Holder; and , and (b) Seller shall reimburse Buyer for Pursuit Costs; and (c3) Seller shall be solely responsible for the payment of any Cancellation Charges; or 14.3.3 14.3.2 Buyer may enforce specific performance of this Agreement against Seller, provided that Buyer shall only have the right to file an action for specific performance and file a lis pendens only if (i) all conditions precedent for Seller’s benefit have been fulfilled in all material respects or waived in writing (provided, however, that Buyer’s proof of funds from a bank with a United States office (which proof of funds may include, to the extent applicable, reasonable confirmation from any lender that any required funds from such lender shall be wire transferred into Escrow upon Seller’s delivery of the items described in Sections 10 and 11 shall be deemed to satisfy the requirement for funding as a condition precedent to Closing); (ii) Buyer is not in material breach of any of its material obligations under this Agreement, which is continuing beyond five three (53) business days following Buyer’s receipt of written notice thereof from Seller, and (iii) any action for specific performance shall be filed within forty-five (45) days after the date otherwise scheduled for Close of Escrow. With respect to subitem (i) of this Section 14.3.314.3.2, Buyer (a) in no event shall be required to deposit an amount equal to the Purchase Price in order to satisfy such condition, but shall be obligated to demonstrate the availability of such funds promptly within one (1) business dayday of the date on which Close of Escrow was scheduled to occur; and (b) if deposited with Escrow Holder such Purchase Price shall be released back to Buyer immediately upon Buyer’s request for same to Escrow Holder. EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 14.3.2, BUYER WAIVES ALL OTHER RIGHTS TO FILE ANY ACTION FOR SPECIFIC PERFORMANCE OR TO FILE A LIS PENDENS. Notwithstanding anything to the contrary hereinabove provided, in the event Buyer elects to pursue an action for specific performance in compliance with the foregoing and if such action is unsuccessful (not as a result of a Buyer default of its obligations under this Agreement or a failure of conditions precedent that do not constitute a Seller default) or subsequently is withdrawn by Buyer, then this Agreement shall terminate and the terms set forth in Section 14.3.2(b) 14.3.1 above shall be applicable. Failure to file an action for specific performance within the time period permitted pursuant to this Section 14.3.3 14.3.2 shall be deemed an election for Section 14.3.2. 14.3.1. 14.3.3 Notwithstanding anything to the contrary contained herein, in the event specific performance with respect to Seller’s obligation to convey the Property pursuant to and in accordance with this Agreement is not an available remedy as a result of Seller’s conveyance of the Property (or any portion thereof) to another person or entity, then Buyer may pursue the right to seek to recover any and all damages damages, provided Buyer’s damages shall be limited to any amounts received by Seller in excess of the Base Purchase Price and all enforcement costs per Section 24. 14.3.4 . The terms of this Section 14.3 shall survive the termination of this Agreement.

Seller’s Pre-Closing Default. In the event of a Seller breach or default under this Agreement (a “Seller Breach”) prior Purchaser shall elect, as its sole remedy, either to the Close of Escrow which remains uncured after notice from Buyer for a period of two (2) business days, then upon the written election of Buyer given to Seller and Escrow Holder: 14.3.1 Buyer may proceed to Closing and waive the Seller Breach, without any adjustment to the Purchase Price (other than as may be applicable pursuant to Section 14.2.1 above); or 14.3.2 Buyer may terminate this Agreement, whereupon the rights and obligations of Buyer and Seller shall terminate, except as and to the extent specifically provided otherwise in this Agreement, and: (a) Escrow Holder terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing and recover the Xxxxxxx Money, in which event Seller shall promptly deliver reimburse Purchaser for its out-of-pocket costs and expenses incurred in connection with the Deposit transaction contemplated hereby up to Buyera maximum of [***], together with any interest earned on it while held by Escrow Holder, and in addition Escrow Holder is instructed to return to Buyer and Seller all other documents and other items deposited by them, respectively, into Escrow that are then held by Escrow Holder; and (b) Seller shall reimburse Buyer for Pursuit Costs; and (c) Seller shall be solely responsible for the payment of any Cancellation Charges; or 14.3.3 Buyer may enforce specific performance of this Agreement against Seller, provided that Buyer shall only have to consummate the right to file an action for specific performance and file a lis pendens only if (i) all conditions precedent for Seller’s benefit have been fulfilled in all material respects or waived in writing (provided, however, that Buyer’s proof of funds from a bank with a United States office (which proof of funds may include, to the extent applicable, reasonable confirmation from any lender that any required funds from such lender shall be wire transferred into Escrow upon Seller’s delivery sale of the items described in Sections 10 Property hereunder and 11 shall be deemed to satisfy execute and deliver the requirement for funding as a condition precedent to Closing); (ii) Buyer is not in material breach of any of its material obligations under this Agreement, which is continuing beyond five (5) business days following Buyer’s receipt of written notice thereof from Seller, and (iii) any action for specific performance shall be filed within forty-five (45) days after the date otherwise scheduled for Close of Escrow. With respect to subitem (i) of this Section 14.3.3, Buyer (a) in no event shall be documents required to deposit an amount equal to the Purchase Price in order to satisfy such condition, but shall be obligated to demonstrate the availability of such funds promptly within one (1) business day; and (b) if deposited with Escrow Holder such Purchase Price shall be released back to Buyer immediately upon Buyer’s request for same to Escrow Holder. BUYER WAIVES ALL OTHER RIGHTS TO FILE ANY ACTION FOR SPECIFIC PERFORMANCE OR TO FILE A LIS PENDENS. Notwithstanding anything to the contrary hereinabove provided, in the event Buyer elects to pursue an action for specific performance in compliance with the foregoing and if such action is unsuccessful (not as a result of a Buyer default of its obligations under this Agreement or a failure of conditions precedent that do not constitute a Seller default) or subsequently is withdrawn by Buyer, then this Agreement shall terminate and the terms set forth in Section 14.3.2(b) above shall be applicable. Failure to file an action for specific performance within the time period permitted pursuant to this Section 14.3.3 shall be deemed an election for Section 14.3.2. Notwithstanding anything to the contrary contained herein, in the event specific performance with respect to Seller’s obligation to convey the Property pursuant to and Purchaser in accordance with this Agreement is (it being specifically understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder), or (c) waive said failure or breach and proceed to Closing without any reduction in the Purchase Price. Notwithstanding anything herein to the contrary, Purchaser shall not be entitled to a remedy of specific performance and shall be deemed to have elected to terminate this Agreement unless Purchaser files an available remedy as arbitration action pursuant to Section 12.21 hereof for specific performance within ten Business Days of the scheduled Closing Date. Purchaser’s remedies for a result of Seller’s conveyance of the Property (or any portion thereof) to another person or entity, then Buyer may pursue the right to seek to recover any and all damages provided Buyer’s damages Pre-Closing Default shall be limited to any amounts received by Seller those described in excess of the Purchase Price and all enforcement costs per Section 24. 14.3.4 The terms of this Section 14.3 shall survive the termination of this Agreement10.2 and Sections 10.3 and 10.4 hereof. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, MEMBERS, MANAGERS, OWNERS OR AFFILIATES, ANY OFFICER, MANAGER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.

Seller’s Pre-Closing Default. In 00.0.0. Xx the event of a Seller Sellers materially breach or default fail, without legal excuse, to complete the sale of the Properties or to perform their respective obligations under this Agreement Agreement, and such failure continues for ten (a “Seller Breach”10) prior to the Close of Escrow which remains uncured Business Days after written notice from Buyer for a to Sellers regarding the same (provided that such ten (10) Business Day period of two (2) business days, then upon the written election of Buyer given to Seller and Escrow Holder: 14.3.1 Buyer may proceed to Closing and waive the Seller Breach, without any adjustment to the Purchase Price (other than as may shall not be applicable pursuant in connection with a failure by Sellers to Section 14.2.1 aboveperform any of its obligations on the scheduled Closing Date); or 14.3.2 , Buyer may terminate this Agreementmay, whereupon the rights and obligations of Buyer and Seller shall terminate, except as and to the extent specifically provided otherwise in this Agreement, and: its sole remedy therefor either (a) Escrow Holder shall promptly deliver the Deposit to Buyer, together with any interest earned on it while held by Escrow Holder, and in addition Escrow Holder is instructed to return to Buyer and Seller all other documents and other items deposited by them, respectively, into Escrow that are then held by Escrow Holder; and (b) Seller shall reimburse Buyer for Pursuit Costs; and (c) Seller shall be solely responsible for the payment of any Cancellation Charges; or 14.3.3 Buyer may enforce specific performance of this Agreement against SellerSellers, provided that or (b) terminate this Agreement and receive a return of the Deposit. In the latter case, Sellers shall promptly reimburse Buyer shall only have the right to file an action for specific performance and file a lis pendens only if (i) all conditions precedent for Seller’s benefit have been fulfilled in all material respects or waived in writing (provided, however, that Buyer’s proof actual verifiable out-of-pocket costs and expenses incurred in connection with this Agreement or as a result of funds from Sellers’ default hereunder (“Pursuit Costs”) not to exceed a bank with a United States office (which proof total amount of funds may include, to the extent applicable, reasonable confirmation from any lender that any required funds from such lender shall be wire transferred into Escrow upon Seller’s delivery of the items described in Sections 10 and 11 $250,000. Buyer shall be deemed to satisfy have elected to terminate this Agreement and receive a return of the requirement for funding as a condition precedent Deposit and reimbursement of the Pursuit Costs if Buyer fails to Closing); provide Sellers with written notice, within fifteen (ii15) Buyer is not in material breach of any of its material obligations under this Agreement, which is continuing beyond five (5) business days following the date upon which the Closing was to have occurred, of Buyer’s receipt of written notice thereof from Seller, and (iii) any action intent to file a suit for specific performance shall be filed or if Buyer fails to file such suit within forty-five (45) days after such written notice. Notwithstanding the date otherwise scheduled for Close of Escrow. With respect foregoing, solely in the event that Sellers default under this Agreement by transferring the Property to subitem another person or entity (iother than Buyer) of this Section 14.3.3such that specific performance is no longer an available remedy, then, in addition to its remedies set forth above, Buyer (a) shall have the right to bring an action against Seller for Buyer’s actual damages, provided that in no event shall be required to deposit the liability of Seller in such event exceed an amount equal to the Purchase Price in order to satisfy amount by which the purchase price paid by such condition, but shall be obligated to demonstrate the availability of such funds promptly within one (1) business day; and (b) if deposited with Escrow Holder such Purchase Price shall be released back to Buyer immediately upon Buyer’s request for same to Escrow Holder. BUYER WAIVES ALL OTHER RIGHTS TO FILE ANY ACTION FOR SPECIFIC PERFORMANCE OR TO FILE A LIS PENDENS. Notwithstanding anything to the contrary hereinabove provided, in the event Buyer elects to pursue an action for specific performance in compliance with the foregoing and if such action is unsuccessful (not as a result of a Buyer default of its obligations under this Agreement or a failure of conditions precedent that do not constitute a Seller default) or subsequently is withdrawn by Buyer, then this Agreement shall terminate and the terms set forth in Section 14.3.2(b) above shall be applicable. Failure to file an action for specific performance within the time period permitted pursuant to this Section 14.3.3 shall be deemed an election for Section 14.3.2. Notwithstanding anything to the contrary contained herein, in the event specific performance with respect to Seller’s obligation to convey the Property pursuant to and in accordance with this Agreement is not an available remedy as a result of Seller’s conveyance of the Property (or any portion thereof) to another other person or entity, then Buyer may pursue entity exceeds the right to seek to recover any and all damages provided Buyer’s damages shall be limited to any amounts received by Seller in excess amount of the Purchase Price and all enforcement costs per Section 24. 14.3.4 The terms of this Section 14.3 shall survive the termination of set forth in this Agreement. 10.2.2. Except as set forth in this Section 10.2, Buyer expressly waives its rights to seek damages in the event of any Seller’s pre-Closing default hereunder.

Seller’s Pre-Closing Default. In the event of a Seller breach or default under this Agreement (a “Seller Breach”) prior to the Close of Escrow which remains uncured after notice from Buyer for a period of two ten (210) business days, then upon the written election of Buyer given to Seller and Escrow HolderHolder within two (2) business days after the expiration of such ten-day period, Buyer may elect one of the following three options: 14.3.1 14.2.1 Buyer may proceed to Closing and waive the Seller Breach, without any adjustment to the Purchase Price (other than as may be applicable pursuant to Section 14.2.1 above); orPrice; 14.3.2 14.2.2 Buyer may terminate this Agreement, whereupon the rights and obligations of Buyer and Seller shall terminate, except as and to the extent specifically provided otherwise in this Agreement, and: (a) Escrow Holder shall promptly deliver the Deposit (less the Review Consideration) to Buyer, together with any interest earned on it while held by Escrow Holder, and in addition Escrow Holder is instructed to return to Buyer and Seller all other documents and other items deposited by them, respectively, into Escrow that are then held by Escrow Holder; and. (b) Seller shall reimburse Buyer for Pursuit Costs; and (c) Seller shall be solely responsible for the payment of any Cancellation Charges; or. 14.3.3 (c) If the Seller Breach is a willful and intentional breach, then Seller shall reimburse Buyer for any fees or costs paid by Buyer to its attorneys, lender, inspectors and other professionals rendering services to Buyer in connection with this transaction up to a maximum of $250,000 (the “Reimbursement Cap”). 14.2.3 Buyer may enforce specific performance of this Agreement against SellerSeller and file a lis pendens with respect thereto, provided that Buyer shall only have the right to file an action for specific performance and file a lis pendens only if (i) all conditions precedent for Seller’s benefit set forth in Section 9.2 (other than the delivery of the Purchase Price), have been fulfilled in all material respects or waived in writing (providedwriting, however, that Buyer’s proof of funds from a bank with a United States office (which proof of funds may include, to the extent applicable, reasonable confirmation from any lender that any required funds from such lender shall be wire transferred into Escrow upon Seller’s delivery of the items described in Sections 10 and 11 shall be deemed to satisfy the requirement for funding as a condition precedent to Closing); (ii) Buyer is ready, willing and able to deliver the Purchase Price in accordance with the terms of this Agreement, (iii) Buyer is not in material breach of any of its material obligations under this Agreement, which is continuing beyond five (5) business days following Buyer’s receipt of written notice thereof from Seller, and (iiiiv) any action for specific performance shall be filed within forty-five sixty (4560) days after the date otherwise scheduled for Close of Escrow. With respect to subitem (i) of this Section 14.3.3, Buyer (a) in no event shall be required to deposit an amount equal to the Purchase Price in order to satisfy such condition, but shall be obligated to demonstrate the availability of such funds promptly within one (1) business day; and (b) if deposited with Escrow Holder such Purchase Price shall be released back to Buyer immediately upon Buyer’s request for same to Escrow Holder. BUYER WAIVES ALL OTHER RIGHTS TO FILE ANY ACTION FOR SPECIFIC PERFORMANCE OR TO FILE A LIS PENDENSPENDENS EXCEPT AS EXPRESSLY PERMITTED UNDER THIS SECTION 14.2.3. Notwithstanding anything to the contrary hereinabove provided, in the event Buyer elects to pursue an action for specific performance in compliance with the foregoing and if such action is unsuccessful pursuant to a final, non-appealable judgment, (not as a result of a Buyer default of its obligations under this Agreement or a failure of conditions precedent that do not constitute a Seller default) or subsequently is withdrawn by BuyerBuyer and not re-filed within such 60 day period, then this Agreement shall terminate and the terms set forth in Section 14.3.2(b) 14.2.1 above shall be applicable. Failure to file an action for specific performance within the time period permitted pursuant to this Section 14.3.3 give timely notice shall be deemed an election for Section 14.3.214.2.2. Notwithstanding anything to the contrary contained herein, in the event specific performance with respect to Seller’s obligation to convey the Property pursuant to and in accordance with this Agreement is not an available remedy as a result of Seller’s conveyance of the Property (or any portion thereof) to another person or entity, then Buyer may pursue the right to seek to recover any and all damages provided Buyer’s damages shall be limited to any amounts received by Seller in excess of the Purchase Price and all enforcement costs per Section 24. 14.3.4 The terms of this Section 14.3 14.2 shall survive the termination of this Agreement.