Buyer’s Failure. SELLER AND BUYER ACKNOWLEDGE THAT SUBSTANTIAL DAMAGES WILL BE SUFFERED BY SELLER IN THE EVENT THAT THE CLOSING SHOULD FAIL TO OCCUR DUE TO A DEFAULT BY BUYER UNDER THIS AGREEMENT. WITH 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 PROPERTY, THE PARTIES REALIZE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE, IF NOT IMPOSSIBLE, AS OF THE SIGNING OF THIS AGREEMENT, TO ASCERTAIN WITH ANY DEGREE OF CERTAINTY THE EXTENT OF DAMAGES TO SELLER IN THE EVENT THE CLOSING FAILS TO OCCUR DUE TO BUYER’S DEFAULT. THE PARTIES HEREBY AGREE THAT A REASONABLE ESTIMATE OF SUCH DAMAGES IS THE AMOUNT OF THE XXXXXXX MONEY. ACCORDINGLY, IF THE CLOSING FAILS TO OCCUR DUE TO ANY DEFAULT BY BUYER, SELLER SHALL BE ENTITLED TO RETAIN THE XXXXXXX MONEY AS SELLER’S SOLE AND EXCLUSIVE REMEDY FOR SUCH DEFAULT. NOTHING CONTAINED IN THIS SECTION SHALL LIMIT IN ANY MANNER SELLER’S RIGHT TO RECOVERY OF ANY AMOUNT AVAILABLE UNDER APPLICABLE LAW UNDER INDEMNIFICATION PROVISIONS SET FORTH IN THIS AGREEMENT, OR FOR BREACHES OF THIS AGREEMENT OTHER THAN BUYER’S FAILURE OR REFUSAL TO PURCHASE THE PROPERTY. Initials of Seller Initials of Buyer
Buyer’s Failure. In the event that the Buyer defaults in the closing of a purchase of a Membership Interest as herein provided, then the Seller shall have the option to: (A) elect to purchase the Buyer’s Membership Interest on the terms and conditions otherwise set forth herein, by notice to the Buyer of the Seller’s intention so to do, given within fifteen (15) days after such default in which event the Seller shall become the Buyer and the Buyer shall become the Seller, and all the applicable terms, conditions and provisions of this Agreement with respect to such sales shall govern, except that the closing thereof shall take place thirty (30) days after such date of notice from the Seller (now the Buyer) to the Buyer (now the Seller) and except that the purchase price shall be ten percent (10%) less than the price which the Seller (now the Buyer) would have had to pay had such Buyer (now the Seller) originally elected to sell its Membership Interest; (B) terminate the Seller’s obligation to convey its Membership Interest to the Buyer by notice to the Buyer, in which case the position of the parties shall revert to the status quo ante as if no notice from either party to the other had been given under the provisions of this Agreement; or (C) sxx Buyer in the appropriate court for specific performance.
Buyer’s Failure. In the event that a Buyer defaults in the closing of a sale of Units as herein provided, then the Seller shall have the option:
Buyer’s Failure. Unless excused by Force Majeure or Seller’s failure to perform, and except during any Curtailment Period, if any Buyer fails to receive at the Point of Delivery all or any part of the Facility Energy required to be received by Buyers under this Article VI, Article VIII, or Article IX, such Buyer shall, on the date payment would otherwise be due to Seller, pay Seller Cover Damages; provided that Seller shall use commercially reasonable efforts to resell any Facility Energy and Environmental Attributes not able to be received by such Buyer. “Cover Damages” means the positive difference, if any, obtained by subtracting (i) the amount for which Seller, acting in a commercially reasonable manner, resells any such Facility Energy and, if applicable, Environmental Attributes (or, absent any such sales despite using commercially reasonable efforts to procure such sales, zero dollars ($0)) from (ii) the applicable prices that would have been payable by SMUD, MID, TID, or SCPPA’s Participating Members, as applicable, for the applicable portion of Facility Energy, and, if applicable, Environmental Attributes not received by such Buyer. Seller shall provide any Buyer that fails to receive all of any part of its portion of the Facility Energy with prompt written notice of the Cover Damages together with back-up documentation.
Buyer’s Failure. If Escrow does not close due to Buyer’s failure to fully and timely perform any of its material obligations hereunder, except as permitted under Section 6(c), and Seller is not in default hereunder, the Escrowholder is irrevocably instructed to deliver the Deposit to Seller as liquidated damages for Buyer’s failure to complete the purchase, it being acknowledged by Buyer and Seller that the damages which Seller would sustain would be impracticable or extremely difficult to fix or determine. Buyer and Seller agree that the liquidated damages shall be Seller’s sole and exclusive remedy for Buyer’s default hereunder. Buyer and Seller agree that Seller’s economic detriment resulting from the removal of the Property from the real estate market and other activities in furtherance of this Agreement would be extremely difficult to ascertain. Accordingly, the parties acknowledge that the actual damages caused Seller by the failure to close Escrow would be extremely difficult to establish. In addition, Buyer desires to have a limitation on its potential liability to Seller if this transaction fails to close. Therefore, in order to induce Seller to waive all other remedies Seller may have in the event of breach by Buyer of its obligations hereunder, Buyer and Seller have agreed to the concept of liquidated damages as set forth herein, with the amount and timing of the payment having been the subject of negotiation between the parties. By placing their initials below, Buyer and Seller acknowledge that they have read, understood, and agreed to be bound by this provision. ______________ _______________ Seller’s Initials Buyer’s Initials
Buyer’s Failure. Seller may terminate this Agreement if Closing has failed to occur as of the Closing Date as a result of:
Buyer’s Failure. If the quantity Buyer receives and purchases on any Day is less than the applicable Contract Quantity and the Sales Price is less than the Contract Price, then Buyer shall be liable for and shall pay to Seller a dollar amount equal to the product of (i) the difference between the Contract Price and the Sales Price, and: (ii)
Buyer’s Failure. Unless excused by Force Majeure or Seller’s failure to perform its obligations under this Agreement, if Buyer fails to receive at the Points of Delivery all or any part of any Facility Energy required to be received by Buyer under this Article VI, Article VIII, or Article IX, Buyer shall pay Seller, within thirty (30) days of Seller’s written request therefor, an amount for each MWh of such deficiency equal to the positive difference, if any, obtained by subtracting the Sales Price from the price per MWh that would have been payable by Buyer for the Energy and Green Attributes not received by Buyer. Seller shall provide Buyer prompt written notice of the Sales Price together with back-up documentation.
Buyer’s Failure. Unless excused by Force Majeure or Seller’s failure to perform its obligations under this Agreement, if Buyer fails to receive at the Points of Delivery all or any part of any Facility Energy required to be received by Buyer under this Article VI, Article VIII, or Article IX, Buyer shall pay Seller, within thirty (30) days of Seller’s written request therefor, an amount for each MWh of such deficiency equal to the positive difference, if any, obtained by subtracting the Sales Price from the price per MWh that would have been payable by Buyer for the Energy not received by Buyer. “Sales Price” means the price at which Seller, acting in a commercially reasonable manner, resells the Energy or, absent a resale, the market price for the quantity of Energy not received by the Buyer (adjusted for transmission difference, if any). Seller shall provide Buyer prompt written notice of the Sales Price together with back-up documentation.
Buyer’s Failure. If Escrow does not close due to Buyer’s default subsequent to compliance with 6(c) above, the Escrowholder is irrevocably instructed to deliver the Initial Deposit to Seller as liquidated damages for Buyer’s failure to complete the purchase, it being acknowledged by Xxxxx and Seller that the damages which seller would sustain would be impracticable or extremely difficult to fix or determine. Xxxxx and Seller have agreed to the concept of liquidated damages as set forth herein, with the amount and timing of the payment having been the subject of negotiation between the parties. By placing their initials below, Xxxxx and Seller acknowledge that they have read, understood, and agreed to be bound by this liquidation. jk jk Seller’s Initials
