Subsequent to Closing. Buyer shall have the right, at Buyer’s option and expense, to have items requested by Buyer from the Loan File either delivered to Buyer at the address specified by Buyer or collected by Buyer from the location at which the Loan File is stored; provided that in no event shall Buyer be entitled to receive any Excluded Documents (except to the extent (and only to the extent) that such Excluded Documents (x) are necessary for Buyer’s prosecution or defense of the Pending Proceedings and (y) do not constitute analyses or trade secrets of Seller or any of the Released Parties). Additionally, in no event shall Seller be required to deliver or make available to Buyer any item from the Loan File (i) that was designated as confidential in the Pending Proceedings, unless Buyer (or its assignee pursuant to Section 7.6 hereof) has signed the applicable Stipulation and Order of Confidentiality as required in the Pending Proceedings or (ii) that may reasonably be expected to result in a waiver of any attorney-client, work product or other privilege to which Seller is entitled. Seller and Buyer each intend that the delivery to Buyer of items from the Loan File pursuant to this Section 5.3(b) shall not be construed as a waiver of any attorney-client, work product or other privilege to which Seller is entitled. All actual out-of-pocket costs and expenses of any of the Released Parties incurred in connection with this Section 5.3(b) shall be paid by Buyer. Subject to the foregoing, subsequent to Closing Buyer’s counsel may review the files relating to the Pending Proceedings maintained by Seller’s counsel at the office of Seller’s counsel, and request copies therefrom of any pleadings, motions and other court-filed papers, any discovery materials, including all requests, responses, transcripts of depositions, and other relevant written correspondence between or among the Court and counsel for the parties in the Pending Proceedings.
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Sources: Loan Purchase and Sale Agreement, Loan Purchase and Sale Agreement (KBS Strategic Opportunity REIT, Inc.)
Subsequent to Closing. Buyer (a) If the Closing occurs, Purchaser hereby expressly waives, relinquishes and releases any right or remedy available to it at law, in equity, under this Agreement or otherwise to make a claim against Seller for damages that Purchaser may incur, or to rescind this Agreement and the transactions contemplated hereby, as the result of any of Seller's representations or warranties in this Agreement or any document executed by Seller in connection herewith being untrue, inaccurate or incorrect if Purchaser knew, or is deemed to know, that such representation or warranty was untrue, inaccurate or incorrect at the time of the Closing. In the event that any representation or warranty made by Seller herein is found to be inaccurate, untrue or breached, as the case may be, in any material respect after the Closing Date, Purchaser shall have the right, at Buyer’s option and expensefor a period of fifteen (15) months after the Closing Date, to have items requested by Buyer seek actual (but not consequential or punitive) damages from Seller; provided, however, that Purchaser must commence a legal action or proceeding seeking such damages within said fifteen (15) month period, or its claims shall thereafter be barred. If the Loan File either delivered Closing occurs, Seller hereby expressly waives, relinquishes and releases any right or remedy available to Buyer it at the address specified by Buyer or collected by Buyer from the location at which the Loan File is stored; provided that in no event shall Buyer be entitled to receive any Excluded Documents (except to the extent (and only to the extent) that such Excluded Documents (x) are necessary for Buyer’s prosecution or defense of the Pending Proceedings and (y) do not constitute analyses or trade secrets of Seller or any of the Released Parties). Additionallylaw, in no event shall equity, under this Agreement or otherwise to make a claim against Purchaser for damages that Seller be required may incur, or to deliver or make available to Buyer any item from rescind this Agreement and the Loan File (i) that was designated transactions contemplated hereby, as confidential in the Pending Proceedings, unless Buyer (or its assignee pursuant to Section 7.6 hereof) has signed the applicable Stipulation and Order of Confidentiality as required in the Pending Proceedings or (ii) that may reasonably be expected to result in a waiver of any attorney-client, work product or other privilege to which Seller is entitled. Seller and Buyer each intend that the delivery to Buyer of items from the Loan File pursuant to this Section 5.3(b) shall not be construed as a waiver of any attorney-client, work product or other privilege to which Seller is entitled. All actual out-of-pocket costs and expenses of any of the Released Parties incurred Purchaser's representations or warranties in this Agreement or any document executed by Purchaser in connection with herewith being untrue, inaccurate or incorrect if Seller knew, or is deemed to know, that such representation or warranty was untrue, inaccurate or incorrect at the time of the Closing. In the event any representation or warranty made by Purchaser herein is found to be inaccurate, untrue or breached, as the case may be, in any material respect after the Closing Date, Seller shall have the right, for a period of fifteen (15) months after the applicable Closing Date, to seek actual (but not consequential or punitive) damages from Purchaser; provided, however, that Seller must commence a legal action or proceeding seeking such damages within said fifteen (15) month period, or its claims shall thereafter be barred. The representations and warranties made by Purchaser and Seller in this Section 5.3(b) shall Agreement or any document executed by Purchaser or Seller, as applicable, in connection herewith are personal to Seller and Purchaser, as applicable, and may not be paid assigned to, or enforced by Buyer. Subject any other person, other than to the foregoing, subsequent an assignee of Purchaser prior to Closing Buyer’s counsel may review the files relating to the Pending Proceedings maintained in accordance with Section 31, or by Seller’s counsel at the office of Seller’s counsel, and request copies therefrom Guarantor (as defined below) in defense of any pleadings, motions and other court-filed papers, any discovery materials, including all requests, responses, transcripts of depositions, and other relevant written correspondence between or among the Court and counsel for the parties in the Pending Proceedingsclaim by Purchaser under Section 15.
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