Common use of By Purchaser Clause in Contracts

By Purchaser. If prior to Closing, Purchaser breaches in any ------------ material respect any of its covenants, obligations, liabilities or duties hereunder without such breach being cured within applicable notice and cure periods, or in any documents or certificates executed and delivered by any of the Purchaser Parties in connection herewith, or if any of Purchaser's representations and warranties prove to be false in any material respect as of the date deemed to be made, then Seller shall be entitled to elect one of the following options: (a) terminate its obligation to sell and Purchaser's obligation to purchase the Property and not proceed with Closing, whereupon Seller shall be entitled to prompt receipt of the Xxxxxxx Money from Escrow Agent pursuant to the Xxxxxxx Money Trust Agreement and/or Purchaser, as applicable, and retain the Xxxxxxx Money as its sole and exclusive remedy and as liquidated damages for Purchaser's breach of this Agreement, any and all other claims for losses, damages, costs and expenses being deemed waived hereby, provided however, the recovery of reasonable attorneys' fees (whether incurred in connection with nonjudicial action, prior to trial or at trial, including any proceedings under the Bankruptcy Code, excluding, however, any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement shall not be limited hereby; or (b) in the event Closing occurs, exercise the rights and remedies set forth in Section ------- 6.3. Further, in the event Seller elects not to proceed to Closing and receives --- and retains the Xxxxxxx Money as provided herein, and because the actual damages suffered by Seller as a result of such breach by Purchaser would be impracticable or extremely difficult or impossible to determine, Purchaser and Seller agree that the amount of the Xxxxxxx Money shall be the amount of damages to which Seller is entitled in such event and that the amount of such liquidated damages is reasonable and does not constitute a penalty. Upon full receipt of the Xxxxxxx Money by Seller pursuant to (a) above, this Agreement, including the purchase and sale obligations of Purchaser and Seller hereunder, shall be deemed automatically terminated, and the parties shall have no further rights, obligations or liabilities hereunder, provided however, the recovery of reasonable attorneys' fees (whether incurred in connection with nonjudicial action, prior to trial or at trial, including any proceedings under the Bankruptcy Code, excluding, however, any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement shall not be limited hereby. If Purchaser hinders, delays, contests or interferes with Seller's receipt or retention of the Xxxxxxx Money (or attempts to do any of the foregoing), then in any action brought thereon, the prevailing party shall be entitled to recover reasonable attorney's fees and expenses (whether incurred in connection with nonjudicial action, prior to trial, at trial or on appeal or review, including any proceedings under the Bankruptcy Code). If Seller is the prevailing party, such amounts shall be in addition to retention of the Xxxxxxx Money, and if Purchaser is the prevailing party, such amounts shall be in addition to the return of the Xxxxxxx Money by Seller.

By Purchaser. If prior In the event of a termination of this Agreement pursuant to ClosingSection 8.1(b) by Purchaser, this Agreement shall forthwith become void and of no effect other than as otherwise provided herein and there shall be no liability on the part of any party hereto; provided that the Deposit with accrued interest thereon shall be returned to Purchaser breaches in any ------------ material respect any of its covenants, obligations, liabilities or duties hereunder without such breach being cured within applicable (after notice and cure periods, or in any documents or certificates executed and delivered by any lapse of the time as described below). If Purchaser Parties in connection herewith, or if any of Purchaser's representations and warranties prove to be false in any material respect as of the date deemed to be made, then Seller shall be entitled to elect one of the following options: (a) terminate its obligation to sell and Purchaser's obligation to purchase the Property and not proceed with Closing, whereupon Seller shall be entitled to prompt receipt of the Xxxxxxx Money from Escrow Agent has terminated this Agreement pursuant to the Xxxxxxx Money Trust provisions of Section 8.1(b) (including the first and second provisos therein) because of a breach of a representation and warranty contained in Section 4.2 by Seller, Purchaser's sole remedy therefor shall be the return of the Deposit and accrued interest thereon. If Purchaser has terminated this Agreement and/or Purchaserbecause of a breach of a representation and warranty contained in Section 4.1 or of any obligation of Seller hereunder, as applicablePurchaser may pursue all its remedies provided in Section 9.2. Purchaser shall notify Seller that Purchaser has terminated this Agreement pursuant to Section 8.1(b) and specify the grounds for such termination, and retain Seller shall have five (5) days after receipt of such notice to notify Purchaser that it disputes such termination, such notice to state the Xxxxxxx Money grounds for such dispute. If Seller does not so notify Purchaser that a dispute exists and the grounds therefor within such five (5) day period, Seller shall pay the Deposit and accrued interest thereon to Purchaser. If Seller sends such a notice of dispute to Purchaser within the five (5) day period, Seller shall continue to hold the Deposit in accordance with this Agreement until such time as its sole the dispute has been resolved. The Deposit and exclusive remedy and as liquidated damages accrued interest thereon shall then be disbursed in accordance with the resolution of the dispute. The successful party shall be reimbursed for Purchaser's breach of this Agreementall expenses, any and all other claims for losses, damages, costs and expenses being deemed waived hereby, provided however, the recovery of including reasonable attorneys' fees (whether fees, incurred in connection with nonjudicial action, prior to trial or at trial, including any proceedings successful action brought under the Bankruptcy Code, excluding, however, any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement shall not be limited hereby; or (b) in the event Closing occurs, exercise the rights and remedies set forth in Section ------- 6.38.2(c). Further, in the event Seller elects not to proceed to Closing and receives --- and retains the Xxxxxxx Money as provided herein, and because the actual damages suffered by Seller as a result of such breach by Purchaser would be impracticable or extremely difficult or impossible to determine, Purchaser and Seller agree that the amount of the Xxxxxxx Money shall be the amount of damages to which Seller is entitled in such event and that the amount of such liquidated damages is reasonable and does not constitute a penalty. Upon full receipt of the Xxxxxxx Money by Seller pursuant to (a) above, this Agreement, including the purchase and sale obligations of Purchaser and Seller hereunder, shall be deemed automatically terminated, and the parties shall have no further rights, obligations right to Consequential Damages. In no event shall Purchaser have the right to offset amounts due it under this Section 8.2(c) or liabilities hereunder, provided however, the recovery under any other contract or agreement with Seller or any Affiliate of reasonable attorneys' fees (whether incurred in connection with nonjudicial action, prior to trial or at trial, including any proceedings under the Bankruptcy Code, excluding, however, any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement shall not be limited hereby. If Purchaser hinders, delays, contests or interferes with Seller's receipt or retention of the Xxxxxxx Money (or attempts to do any of the foregoing), then in any action brought thereon, the prevailing party shall be entitled to recover reasonable attorney's fees and expenses (whether incurred in connection with nonjudicial action, prior to trial, at trial or on appeal or review, including any proceedings under the Bankruptcy Code). If Seller is the prevailing party, such amounts shall be in addition to retention of the Xxxxxxx Money, and if Purchaser is the prevailing party, such amounts shall be in addition to the return of the Xxxxxxx Money by Seller.

By Purchaser. If prior to Closing, In the event that Purchaser breaches defaults in any ------------ material respect any the observance or performance of its covenants, obligations, liabilities or duties covenants and obligations hereunder without after written notice by Seller to Purchaser of such breach being cured within applicable notice default and cure periods, or in any documents or certificates executed and delivered by any of the Purchaser Parties in connection herewith, or if any of Purchaser's representations and warranties prove failure to be false in any material respect as cure such default within two (2) Business Days after receipt of the date deemed to be madesuch notice, then Seller shall be entitled to elect one terminate this Agreement with respect to any Facility for which a Facility Closing has not yet occurred and to which such default relates by written notice to Purchaser of the following options: (a) terminate its obligation to sell such termination and Purchaser's obligation to purchase the Property and not proceed with Closingshall also be entitled, whereupon Seller shall be entitled to prompt receipt of the Xxxxxxx Money from Escrow Agent pursuant to the Xxxxxxx Money Trust Agreement and/or Purchaser, as applicable, and retain the Xxxxxxx Money as its sole and exclusive remedy hereunder, to receive payment from Escrow Agent of any Earnxxx Xxxey relating to such Facility then being held by Escrow Agent and not previously disbursed at any prior Facility Closing hereof as full liquidated damages for such default of Purchaser. The parties hereby acknowledge the difficulty of ascertaining the actual damages in the event of such a default, that it is impossible more precisely to estimate the damages to be suffered by Seller upon Purchaser's breach default and that the aforesaid payments are intended not as a penalty, but as full liquidated damages and that such amounts constitutes a good faith estimate of the potential damages arising therefrom. Seller's right to so terminate this Agreement and to receive aforesaid payment as full liquidated damages is Seller's sole and exclusive remedy in the event of default hereunder by Purchaser, and Seller hereby waives, relinquishes, releases and covenants not to pursue any and all other rights and remedies, including, but not limited to (i) any right to sue Xxxchaser for specific performance of this Agreement, (ii) any and all other claims right to sue Xxxchaser for losses, damages or to prove that Seller's actual damages exceed the amounts agreed upon herein as full liquidated damages, costs and expenses being deemed waived hereby(iii) any other right or remedy which Seller may otherwise have against Purchaser, provided howevereither hereunder, the recovery of reasonable attorneys' fees (whether incurred in connection with nonjudicial action, prior to trial or at trial, including any proceedings under the Bankruptcy Code, excluding, however, any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement shall not be limited hereby; or (b) in the event Closing occurs, exercise the rights and remedies set forth in Section ------- 6.3. Furtherlaw, in the event Seller elects not to proceed to Closing and receives --- and retains the Xxxxxxx Money as provided herein, and because the actual damages suffered by Seller as a result of such breach by Purchaser would be impracticable equity or extremely difficult or impossible to determine, Purchaser and Seller agree that the amount of the Xxxxxxx Money shall be the amount of damages to which Seller is entitled in such event and that the amount of such liquidated damages is reasonable and does not constitute a penalty. Upon full receipt of the Xxxxxxx Money by Seller pursuant to (a) above, this Agreement, including the purchase and sale obligations of Purchaser and Seller hereunder, shall be deemed automatically terminated, and the parties shall have no further rights, obligations or liabilities hereunder, provided however, the recovery of reasonable attorneys' fees (whether incurred in connection with nonjudicial action, prior to trial or at trial, including any proceedings under the Bankruptcy Code, excluding, however, any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement shall not be limited hereby. If Purchaser hinders, delays, contests or interferes with Seller's receipt or retention of the Xxxxxxx Money (or attempts to do any of the foregoing), then in any action brought thereon, the prevailing party shall be entitled to recover reasonable attorney's fees and expenses (whether incurred in connection with nonjudicial action, prior to trial, at trial or on appeal or review, including any proceedings under the Bankruptcy Code). If Seller is the prevailing party, such amounts shall be in addition to retention of the Xxxxxxx Money, and if Purchaser is the prevailing party, such amounts shall be in addition to the return of the Xxxxxxx Money by Sellerotherwise.

By Purchaser. If prior Purchaser agrees to Closingindemnify and hold harmless Seller and its affiliates, Purchaser breaches and their respective shareholders, directors, officers, employees, successors, assigns, and agents (the “Seller Indemnified Persons”) from and against any and all claims, losses, damages, liabilities, expenses or costs (“Losses”), plus reasonable attorneys’ fees and expenses incurred in connection with Losses and/or enforcement of this Agreement, incurred by Seller by reason of or arising out of or in connection with (i) the breach of any ------------ material respect any of its covenants, obligations, liabilities representation or duties hereunder without such breach being cured within applicable notice and cure periods, warranty contained herein or in any documents certificate or certificates executed and other document delivered to Seller pursuant to the provisions of this Agreement, (ii) the failure of Purchaser to perform any act required under this Agreement or (iii) a claim by any third party with respect to any Liability, contract, other commitment or state of facts which constitutes a breach of any representation or warranty contained in Section 5 hereof or in any certificate or other document delivered by or on behalf of Purchaser to Seller pursuant to the provisions of this Agreement. Seller agrees to give prompt notice to Purchaser of any claim for which Seller seeks indemnification hereunder, which notice shall include a reasonably detailed description of the such claim, and a period of thirty (30) days to cure such breach, and pay on such claim. If any claim is brought against Seller for which indemnification is sought from Purchaser Parties in connection herewith, or if any of Purchaser's representations and warranties prove to be false in any material respect as of the date deemed to be madeunder this Section 9.2, then Seller shall be entitled to elect one control the contest, defense, settlement or compromise of any such claim (including the following options: (a) terminate its obligation to sell engagement of counsel in connection therewith), at Purchaser’s cost and Purchaser's obligation to purchase expense, including the Property cost and not proceed with Closing, whereupon Seller shall be entitled to prompt receipt of the Xxxxxxx Money from Escrow Agent pursuant to the Xxxxxxx Money Trust Agreement and/or Purchaser, as applicable, and retain the Xxxxxxx Money as its sole and exclusive remedy and as liquidated damages for Purchaser's breach of this Agreement, any and all other claims for losses, damages, costs and expenses being deemed waived hereby, provided however, the recovery expense of reasonable attorneys' ’ fees (whether incurred in connection with nonjudicial actionsuch contest, prior defense, settlement or compromise, and Seller shall have the right to trial participate in the contest, defense, settlement or compromise of any such claim at trialits own cost and expense, including any proceedings under the Bankruptcy Code, excludingcost and expense of reasonable attorneys’ fees in connection with such participation; provided, however, that Seller shall not settle or compromise any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement such claim without the prior written consent of Purchaser, which consent shall not be limited hereby; unreasonably withheld or (b) delayed. If Purchaser fails to assume the defense of such claim within 30 days of receipt of notice of such claim, or if at any time Purchaser shall fail to defend in good faith any such claim, Seller may assume the event Closing occurs, exercise the rights defense thereof and remedies set forth in Section ------- 6.3. Further, in the event Seller elects not to proceed to Closing may employ counsel with respect thereto and receives --- all fees and retains the Xxxxxxx Money as provided hereinexpenses of such counsel shall be paid by Purchaser, and because the actual damages suffered by Seller as a result of may conduct and defend such breach by Purchaser would be impracticable or extremely difficult or impossible to determine, Purchaser and Seller agree that the amount of the Xxxxxxx Money shall be the amount of damages to which Seller is entitled claim in such event and that the amount of such liquidated damages is reasonable and does not constitute a penalty. Upon full receipt of the Xxxxxxx Money by Seller pursuant to (a) above, this Agreement, including the purchase and sale obligations of Purchaser and Seller hereunder, shall be deemed automatically terminated, and the parties shall have no further rights, obligations or liabilities hereunder, provided however, the recovery of reasonable attorneys' fees (whether incurred in connection with nonjudicial action, prior to trial or at trial, including any proceedings under the Bankruptcy Code, excludingmanner as it may deem appropriate; provided, however, that Seller shall not settle or compromise any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement such claim without the prior written consent of Purchaser, which consent shall not be limited hereby. If Purchaser hinders, delays, contests unreasonably withheld or interferes with Seller's receipt or retention of the Xxxxxxx Money (or attempts to do any of the foregoing), then in any action brought thereon, the prevailing party shall be entitled to recover reasonable attorney's fees and expenses (whether incurred in connection with nonjudicial action, prior to trial, at trial or on appeal or review, including any proceedings under the Bankruptcy Code). If Seller is the prevailing party, such amounts shall be in addition to retention of the Xxxxxxx Money, and if Purchaser is the prevailing party, such amounts shall be in addition to the return of the Xxxxxxx Money by Sellerdelayed.

By Purchaser. If prior Purchaser hereby represents and warrants to Closing, Purchaser breaches in any ------------ material respect any of its covenants, obligations, liabilities or duties hereunder without such breach being cured within applicable notice and cure periods, or in any documents or certificates AER: (i) this Agreement has been duly executed and delivered by any Purchaser, and constitutes the legal, valid and binding obligation of Purchaser, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors' rights generally and the discretion of the courts in granting equitable remedies; (ii) Purchaser Parties will acquire the Shares, the Conversion Shares, the Warrant and the Warrant Shares (collectively the "Securities") for its own account, to hold for investment, and with no present intention of dividing its participation with others or reselling or otherwise participating, directly or indirectly, in connection herewitha distribution of the Securities, and it will not make any sale, transfer, or other disposition of the Securities in violation of the Securities Act or any applicable state securities laws (the "State Acts"). There will be placed on the Warrant and any certificates for the Shares, the Conversion Shares and the Warrant Shares, a legend stating in substance: THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS IN RELIANCE ON ONE OR MORE EXEMPTIONS THEREUNDER AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN TRANSACTIONS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT THEREUNDER. THE SECURITIES EVIDENCED HEREBY ARE SUBJECT TO RESTRICTIONS ON TRANSFER CONTAINED IN A SECURITIES PURCHASE AGREEMENT TO WHICH THE CORPORATION IS A PARTY. ANY TRANSFER OF THE SECURITIES REPRESENTED HEREBY IN VIOLATION OF SAID AGREEMENT SHALL BE VOID. THE CORPORATION WILL MAIL TO THE HOLDER OF THESE SECURITIES A COPY OF SUCH RESTRICTIONS WITHOUT CHARGE WITHIN FIVE (5) DAYS AFTER RECEIPT OF WRITTEN REQUEST THEREFOR ADDRESSED TO THE CORPORATION. (iii) Purchaser, in offering to subscribe for the Securities hereunder, has been given access to all material and relevant information concerning AER, thereby enabling Purchaser to make an informed investment decision concerning the Securities. Purchaser has relied solely upon an independent investigation made by it and its representatives, if any, and has, prior to the date hereof, been given access to and the opportunity to examine data and information relating to AER. In making its investment decision to purchase the Securities, Purchaser is not relying on any oral or written representations or assurances from AER or any other person or any representation of AER or any other person other than as set forth in this Agreement. Without limiting the foregoing, Purchaser has reviewed AER's Annual Report on Form 10-K for the year ended December 31, 2000 and AER's Quarterly Report on Form 10-Q for the quarter ended March 31, 2001. Purchaser is an "accredited investor" as defined in Rule 501 of Regulation D under the Securities Act. (iv) Purchaser understands and acknowledges that an investment in the Securities involves a high degree of risk. Purchaser represents that Purchaser is able to bear the economic risk of an investment in the Securities, which Purchaser acknowledges are currently illiquid and may remain illiquid indefinitely, including a possible total loss of its investment. In making this statement Purchaser hereby represents and warrants to AER that Purchaser has adequate means of providing for Purchaser's current needs and contingencies; Purchaser is able to afford to hold the Securities for an indefinite period and Purchaser further represents that Purchaser has such knowledge and experience in financial and business matters that Purchaser is capable of evaluating the merits and risks of the investment in the Securities. Further, Purchaser represents that Purchaser has no present need for liquidity in the Securities and Purchaser is willing to accept such investment risks. (v) Purchaser understands that no United States federal or state agency, or similar agency of any other country, has reviewed, approved, passed upon or made any recommendation or endorsement of AER or the Securities. (vi) This Agreement is made by AER with Purchaser in reliance upon Purchaser's representations and warranties prove covenants made in this Section 3(b), which reliance by its execution of this Agreement Purchaser hereby confirms. (vii) Purchaser understands that the Securities have not been registered under the Securities Act or any State Acts and are being offered and sold pursuant to be false exemptions therefrom based in any material respect as part upon the representations of Purchaser contained herein. (viii) Purchaser knows of no public solicitation or advertisement of an offer in connection with the proposed issuance and sale of the date deemed to be madeSecurities. (ix) Purchaser has reviewed with its tax advisors the U.S. federal, then Seller state, local and foreign tax consequences of an investment in the Securities and the transactions contemplated by this Agreement. Purchaser is relying solely on such advisors and not on any statements or representations of AER or any of its agents and understands that Purchaser (and not AER) shall be entitled to elect one of the following options: (a) terminate its obligation to sell and Purchaser's obligation to purchase the Property and not proceed with Closing, whereupon Seller shall be entitled to prompt receipt of the Xxxxxxx Money from Escrow Agent pursuant to the Xxxxxxx Money Trust Agreement and/or Purchaser, as applicable, and retain the Xxxxxxx Money as its sole and exclusive remedy and as liquidated damages responsible for Purchaser's breach of this Agreement, any and all other claims for losses, damages, costs and expenses being deemed waived hereby, provided however, the recovery of reasonable attorneys' fees (whether incurred in connection with nonjudicial action, prior to trial or at trial, including any proceedings under the Bankruptcy Code, excluding, however, any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement shall not be limited hereby; or (b) in the event Closing occurs, exercise the rights and remedies set forth in Section ------- 6.3. Further, in the event Seller elects not to proceed to Closing and receives --- and retains the Xxxxxxx Money as provided herein, and because the actual damages suffered by Seller own tax liability that may arise as a result of such breach this investment or the transactions contemplated by Purchaser would be impracticable or extremely difficult or impossible to determine, Purchaser and Seller agree that the amount this Agreement. (x) Purchaser's acquisition of the Xxxxxxx Money shall be Securities is not a transaction (or any element of a series of transactions) that is a part of a plan or scheme to evade the amount of damages to which Seller is entitled in such event and that the amount of such liquidated damages is reasonable and does not constitute a penalty. Upon full receipt registration provisions of the Xxxxxxx Money by Seller pursuant to (a) above, this Agreement, including the purchase and sale obligations of Purchaser and Seller hereunder, shall be deemed automatically terminated, and the parties shall have no further rights, obligations or liabilities hereunder, provided however, the recovery of reasonable attorneys' fees (whether incurred in connection with nonjudicial action, prior to trial or at trial, including any proceedings under the Bankruptcy Code, excluding, however, any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement shall not be limited herebySecurities Act. If Purchaser hinders, delays, contests or interferes with Seller's receipt or retention of the Xxxxxxx Money (or attempts to do any of the foregoing), then in any action brought thereon, the prevailing party shall be entitled to recover reasonable attorney's fees and expenses (whether incurred in connection with nonjudicial action, prior to trial, at trial or on appeal or review, including any proceedings under the Bankruptcy Code). If Seller is the prevailing party, such amounts shall be in addition to retention of the Xxxxxxx Money, and if Purchaser is the prevailing party, such amounts shall be in addition to the return of the Xxxxxxx Money by Seller4.

By Purchaser. If Purchaser hereby acknowledges that this Agreement is a contract to extend certain financial accommodations and is personal to Purchaser and Purchaser shall have no right to assign or otherwise Transfer this Agreement or any of its rights, benefits or obligations hereunder (including any representations and warranties included herein) without the prior written consent of Seller, which consent may be withheld, conditioned or delayed in Seller's sole and absolute discretion, except as hereinafter provided. Seller will consent to a one time only assignment by Purchaser of this Agreement and its rights, benefits and obligations hereunder, prior to Closing, to a Person in which Purchaser breaches owns, directly or indirectly, a majority of the outstanding stock or other equity interests, provided that, as a condition precedent to the effectiveness of any such assignment, Purchaser shall notify Seller in writing of any ------------ material respect such assignment at least ten (10) days prior to such assignment and Purchaser and the assignee shall execute and deliver to Seller an express agreement, in form and content satisfactory to Seller, by such assignee and Purchaser to remain jointly and severally liable for the payment and performance of all of Purchaser's obligations and liabilities hereunder. Any assignment or other Transfer, or attempted or purported assignment or other Transfer, by Purchaser of this Agreement, or any of its right and obligations hereunder, shall be NULL AND VOID, unless made with the prior written consent of Seller and strictly in accordance with the terms hereof. Any such permitted assignee shall be deemed the "Purchaser" for all purposes hereunder from and after the assignment by Purchaser of its interest hereunder to such assignee; provided, however, the original named Purchaser herein shall remain jointly and severally liable after such assignment with such permitted assignee for the performance of all covenants, obligations, liabilities or duties hereunder without such breach being cured within applicable notice duties, liabilities, representations and cure periodswarranties of Purchaser under this Agreement and all agreements, or in any documents or and certificates executed and delivered by any of the Purchaser Parties or such permitted assignee in connection herewith. Further, any assignment or other Transfer or attempted or purported assignment or other Transfer by Purchaser of this Agreement, or if any of its rights, benefits and obligations hereunder, shall constitute a material breach by Purchaser of this Agreement and shall entitle Seller to exercise immediately any and all of its rights and remedies hereunder, at law or in equity. Purchaser hereby agrees to indemnify, defend and hold the Seller Parties harmless from and against any Liabilities, including special and consequential damages, arising out of or relating to any assignment or other Transfer and/or attempted or purported assignment or other Transfer by Purchaser and/or any permitted assignee of this Agreement, or any of Purchaser's representations or such assignee's rights, benefits and warranties prove to be false obligations hereunder, in any material respect as breach of the date deemed to be made, then Seller provisions hereof and such indemnification obligation shall be entitled in addition to elect one of the following options: (a) terminate its obligation Seller's right to sell and Purchaser's obligation to purchase the Property and not proceed with Closing, whereupon Seller shall be entitled to prompt receipt of the Xxxxxxx Money from Escrow Agent pursuant to the Xxxxxxx Money Trust Agreement and/or Purchaser, as applicable, and retain the Xxxxxxx Money as its sole and exclusive remedy and as liquidated damages for Purchaser's breach of this Agreement, any and all other claims for losses, damages, costs and expenses being deemed waived hereby, provided however, the recovery of reasonable attorneys' fees (whether incurred in connection with nonjudicial action, prior to trial or at trial, including any proceedings under the Bankruptcy Code, excluding, however, any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement shall not be limited hereby; or (b) by any provision elsewhere in the event Closing occurs, exercise the rights and remedies set forth in Section ------- 6.3. Further, in the event Seller elects not to proceed to Closing and receives --- and retains the Xxxxxxx Money as provided herein, and because the actual damages suffered by Seller as a result of such breach by Purchaser would be impracticable or extremely difficult or impossible to determine, Purchaser and Seller agree that the amount of the Xxxxxxx Money shall be this Agreement limiting the amount of damages to which Seller is entitled in such event and that the amount of such liquidated damages is reasonable and does not constitute a penalty. Upon full receipt of the Xxxxxxx Money by Seller pursuant to (a) above, recover from Purchaser under this Agreement, including the purchase and sale obligations of Purchaser and Seller hereunder, shall be deemed automatically terminated, and the parties shall have no further rights, obligations or liabilities hereunder, provided however, the recovery of reasonable attorneys' fees (whether incurred limitations in connection with nonjudicial action, prior to trial or at trial, including any proceedings under the Bankruptcy Code, excluding, however, any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement shall not be limited hereby. If Purchaser hinders, delays, contests or interferes with Seller's receipt or retention of the Xxxxxxx Money (or attempts to do any of the foregoingSection 7.1(a), then in any action brought thereon, the prevailing party shall be entitled to recover reasonable attorney's fees and expenses (whether incurred in connection with nonjudicial action, prior to trial, at trial or on appeal or review, including any proceedings under the Bankruptcy Code). If Seller is the prevailing party, such amounts shall be in addition to retention of the Xxxxxxx Money, and if Purchaser is the prevailing party, such amounts shall be in addition to the return of the Xxxxxxx Money by Seller.

By Purchaser. If prior Purchaser agrees to Closingindemnify and hold harmless Seller and its affiliates, Purchaser breaches and their respective shareholders, directors, officers, employees, successors, assigns, and agents (the "Seller Indemnified Persons") from and against any and all claims, losses, damages, liabilities, expenses or costs ("Losses"), plus reasonable attorneys' fees and expenses incurred in connection with Losses and/or enforcement of this Agreement, incurred by Seller by reason of or arising out of or in connection with (i) the breach of any ------------ material respect any of its covenants, obligations, liabilities representation or duties hereunder without such breach being cured within applicable notice and cure periods, warranty contained herein or in any documents certificate or certificates executed and other document delivered to Seller pursuant to the provisions of this Agreement, (ii) the failure of Purchaser to perform any act required under this Agreement or (iii) a claim by any third party with respect to any Liability, contract, other commitment or state of facts which constitutes a breach of any representation or warranty contained in Section 7 hereof or in any certificate or other document delivered by or on behalf of Purchaser to Seller pursuant to the provisions of this Agreement. Seller agrees to give prompt notice to Purchaser of any claim for which Seller seeks indemnification hereunder, which notice shall include a reasonably detailed description of the such claim, and a period of thirty (30) days to cure such breach, and pay on such claim. If any claim is brought against Seller for which indemnification is sought from Purchaser Parties in connection herewith, or if any of Purchaser's representations and warranties prove to be false in any material respect as of the date deemed to be madeunder this Section 11.2, then Seller shall be entitled to elect one control the contest, defense, settlement or compromise of any such claim (including the following options: (a) terminate its obligation to sell and engagement of counsel in connection therewith), at Purchaser's obligation to purchase cost and expense, including the Property cost and not proceed with Closing, whereupon Seller shall be entitled to prompt receipt of the Xxxxxxx Money from Escrow Agent pursuant to the Xxxxxxx Money Trust Agreement and/or Purchaser, as applicable, and retain the Xxxxxxx Money as its sole and exclusive remedy and as liquidated damages for Purchaser's breach of this Agreement, any and all other claims for losses, damages, costs and expenses being deemed waived hereby, provided however, the recovery expense of reasonable attorneys' fees (whether incurred in connection with nonjudicial actionsuch contest, prior defense, settlement or compromise, and Seller shall have the right to trial or at trial, including any proceedings under the Bankruptcy Code, excluding, however, any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement shall not be limited hereby; or (b) participate in the event Closing occurscontest, exercise the rights defense, settlement or compromise of any such claim at its own cost and remedies set forth in Section ------- 6.3. Further, in the event Seller elects not to proceed to Closing and receives --- and retains the Xxxxxxx Money as provided herein, and because the actual damages suffered by Seller as a result of such breach by Purchaser would be impracticable or extremely difficult or impossible to determine, Purchaser and Seller agree that the amount of the Xxxxxxx Money shall be the amount of damages to which Seller is entitled in such event and that the amount of such liquidated damages is reasonable and does not constitute a penalty. Upon full receipt of the Xxxxxxx Money by Seller pursuant to (a) above, this Agreementexpense, including the purchase cost and sale obligations of Purchaser and Seller hereunder, shall be deemed automatically terminated, and the parties shall have no further rights, obligations or liabilities hereunder, provided however, the recovery expense of reasonable attorneys' fees (whether incurred in connection with nonjudicial actionsuch participation; PROVIDED, HOWEVER, that Seller shall not settle or compromise any such claim without the prior to trial or at trialwritten consent of Purchaser, including any proceedings under the Bankruptcy Code, excluding, however, any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement which consent shall not be limited herebyunreasonably withheld or delayed. If Purchaser hindersfails to assume the defense of such claim within 30 days of receipt of notice of such claim, delaysor if at any time Purchaser shall fail to defend in good faith any such claim, contests or interferes Seller may assume the defense thereof and may employ counsel with Seller's receipt or retention of the Xxxxxxx Money (or attempts to do any of the foregoing), then in any action brought thereon, the prevailing party shall be entitled to recover reasonable attorney's respect thereto and all fees and expenses (whether incurred in connection with nonjudicial action, prior to trial, at trial or on appeal or review, including any proceedings under the Bankruptcy Code). If Seller is the prevailing party, of such amounts counsel shall be in addition to retention of the Xxxxxxx Moneypaid by Purchaser, and if Purchaser is Seller may conduct and defend such claim in such manner as it may deem 10 <PAGE> appropriate; PROVIDED, HOWEVER, that Seller shall not settle or compromise any such claim without the prevailing partyprior written consent of Purchaser, such amounts which consent shall not be in addition to the return of the Xxxxxxx Money by Sellerunreasonably withheld or delayed.

By Purchaser. If prior to Closing, Purchaser breaches in any ------------ material respect any of its covenants, obligations, liabilities or duties hereunder without such breach being cured within applicable notice and cure periods, or in any documents or certificates executed and delivered by any of the Purchaser Parties in connection herewith, or if any of there occurs a Purchaser's representations and warranties prove to be false in any material respect as of the date deemed to be madeDefault, then Seller shall be entitled to elect one of the following optionsentitled: (a) to terminate its obligation obligations to sell and Purchaser's obligation to purchase the Property Loan Documents and Claims, Rights and Benefits and not to proceed with Closing, whereupon Seller shall be entitled to prompt receipt of the Xxxxxxx Money from Escrow Agent pursuant to the Xxxxxxx Money Trust Agreement and/or Purchaser, as applicable, and retain the Xxxxxxx Money as its sole and exclusive remedy (subject to its further right to recover additional damages and attorneys' fees and expenses as hereinafter provided), as liquidated damages for Purchaser's breach of its purchase obligations under this Agreement, any and all other claims for losses, damages, costs and expenses being deemed waived hereby, provided however, the recovery of reasonable attorneys' fees (whether incurred in connection with nonjudicial action, prior to trial or at trial, including any proceedings under the Bankruptcy Code, excluding, however, any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement shall not be limited hereby; or (b) to proceed to Closing and in the event Closing occurs, exercise to the rights and remedies set forth in Section ------- 6.37.3. Further, in the event Seller elects not to proceed to Closing and receives --- and retains retain the Xxxxxxx Money as provided herein, and because the actual damages suffered by Seller as a result of such breach by Purchaser would be impracticable or extremely difficult or impossible to determine, Purchaser and Seller agree agrees that the amount of the Xxxxxxx Money shall be the amount is a reasonable estimate of damages to which Seller is entitled in such event and that the amount of such liquidated damages is reasonable and does not constitute a penalty. Upon full receipt the election of Seller to retain the Xxxxxxx Money by Seller pursuant to (a) above, this Agreement, including the purchase and sale obligations of Purchaser and Seller hereunder, shall be deemed automatically terminatedterminated (except for such provisions as survive termination), and the parties shall have no further rights, obligations or liabilities hereunder, provided however, except in the recovery of reasonable attorneys' fees (whether incurred in connection with nonjudicial action, prior to trial or at trial, including any proceedings under event the Bankruptcy Code, excluding, however, any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement shall not be limited hereby. If Purchaser wrongfully hinders, delays, contests or interferes with Seller's receipt retention of same (or attempts to do any of the foregoing). If Purchaser wrongfully hinders, delays, contests or interferes with Seller's retention of the Xxxxxxx Money (or attempts to do any of the foregoing), then in any action brought thereon, the prevailing party Seller shall be entitled to recover any additional actual damages (excluding "lost profits," special and consequential damages) arising from Purchaser's breach (including reasonable attorney's fees and expenses (whether incurred in connection with nonjudicial action, prior to trial, at trial or on appeal or review, including any proceedings under the Bankruptcy Code). If Seller is the prevailing party), such amounts shall be in addition to retention of retaining the Xxxxxxx Money, and if Purchaser is the prevailing party, such amounts shall be in addition to the return of the Xxxxxxx Money by Seller.

By Purchaser. If prior to Closing, Purchaser breaches in any ------------ material respect any of its covenants, obligations, liabilities or duties hereunder without such breach being cured within applicable notice and cure periods, or in any documents or certificates executed and delivered by any of the Purchaser Parties in connection herewith, or if any of Purchaser's representations and warranties prove to be false in any material respect as of the date deemed to be made, then Seller shall be entitled to elect one of the following options: (a) terminate its obligation to sell and Purchaser's obligation to purchase the Property and not proceed with Closing, whereupon Seller shall be entitled to prompt receipt of the Xxxxxxx Earnest Money from Escrow Agent pursuant to the Xxxxxxx Earnest Money Trust Agreement Txxxx Xxreement and/or Purchaser, as applicable, and retain xxxxxx the Xxxxxxx Earnest Money as its sole and exclusive remedy and as liquidated damages for daxxxxx xor Purchaser's breach of this Agreement, any and all other claims for losses, damages, costs and expenses being deemed waived hereby, provided however, the recovery of reasonable attorneys' fees (whether incurred in connection with nonjudicial action, prior to trial, at trial or at trialon appeal or review, including any proceedings under the Bankruptcy Code, excluding, however, any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement shall not be limited hereby; or (b) in the event Closing occurs, exercise the rights and remedies set forth in Section ------- 6.3. Further, in the event Seller elects not to proceed to Closing and receives --- and retains the Xxxxxxx Earnest Money as provided herein, and because the actual damages suffered by suffxxxx xy Seller as a result of such breach by Purchaser would be impracticable or extremely difficult or impossible to determine, Purchaser and Seller agree that the amount of the Xxxxxxx Earnest Money shall be the amount of damages to which Seller is entitled in entitxxx xx such event and that the amount of such liquidated damages is reasonable and does not constitute a penalty. Upon full receipt of the Xxxxxxx Earnest Money by Seller pursuant to (a) above, this Agreement, including the includxxx xxx purchase and sale obligations of Purchaser and Seller hereunder, shall be deemed automatically terminated, and the parties shall have no further rights, obligations or liabilities hereunder, provided however, the recovery of reasonable attorneys' fees (whether incurred in connection with nonjudicial action, prior to trial, at trial or at trialon appeal or review, including any proceedings under the Bankruptcy Code, excluding, however, any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement shall not be limited hereby. If Purchaser hinders, delays, contests or interferes with Seller's receipt or retention of the Xxxxxxx Earnest Money (or attempts to do any of the foregoing), then in any action xxx xxxion brought thereon, the prevailing party shall be entitled to recover reasonable attorney's fees and expenses (whether incurred in connection with nonjudicial action, prior to trial, at trial or on appeal or review, including any proceedings under the Bankruptcy Code). If Seller is the prevailing party, such amounts shall be in addition to retention of the Xxxxxxx Earnest Money, and if Purchaser is the prevailing party, such amounts axxxxxx shall be in addition to the return of the Xxxxxxx Earnest Money by Seller.

By Purchaser. If prior Time of Purchaser’s performance is of the essence of this Agreement. In the event Purchaser fails to Closingmake any payment required under this Agreement within five (5) days after notice from Seller that such payment is due, fails to close its purchase of the Unit when required herein, or to perform any other obligation of Purchaser breaches under this Agreement and fails to cure such default within 10 days after notice from Seller specifying in any ------------ material respect any reasonable detail such default, Seller may declare Purchaser to be in default of its covenantsthis Agreement by notice to Purchaser and may, obligationsin addition to exercising all other remedies available to Seller under this Agreement, liabilities or duties hereunder without such breach being cured within applicable notice and cure periodsat law, or in any documents or certificates executed and delivered by any of the Purchaser Parties in connection herewithequity, or if any of Purchaser's representations and warranties prove to be false in any material respect as of the date deemed to be made, then Seller shall be entitled to elect one of the following options: (a) terminate its obligation to sell and Purchaser's obligation to purchase the Property and not proceed with Closing, whereupon Seller shall be entitled to prompt receipt of the Xxxxxxx Money from Escrow Agent pursuant to the Xxxxxxx Money Trust Agreement and/or Purchaser, as applicable, and retain the Xxxxxxx Money as its sole and exclusive remedy and as liquidated damages for Purchaser's breach of this Agreement. UPON SUCH TERMINATION, any and all other claims for lossesTHE ENTIRE AMOUNT PAID BY PURCHASER UNDER THIS AGREEMENT, damagesPLUS ANY INTEREST EARNED ON SUCH AMOUNT, costs and expenses being deemed waived herebyMAY, provided howeverAT SELLER’S SOLE OPTION, the recovery of reasonable attorneys' fees (whether incurred in connection with nonjudicial action, prior BE RELEASED TO SELLER AND RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. Seller’s election not to trial or at trial, including any proceedings under the Bankruptcy Code, excluding, however, any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in terminate this Agreement shall not preclude Seller from thereafter electing to terminate this Agreement and receive the entire amount paid by Purchaser under this Agreement, plus any interest earned thereon. Seller’s election regarding whether or not to retain such amounts as liquidated damages may be limited hereby; or (b) exercised arbitrarily and in the event Closing occurs, exercise the Seller’s sole and absolute discretion. Without limitation of any other rights and remedies set forth in Section ------- 6.3. Furtherof Seller, in the event Purchaser fails to close this transaction at the scheduled closing, then closing may be extended at Seller’s option, for any number of days past the scheduled Closing Date as determined by Seller elects not in Seller’s sole discretion (the “Extension Period”). As additional liquidated damages for the closing delay, that portion of the closing costs which Purchaser is obligated to proceed pay shall be increased by $50.00 per day for each day of the Extension Period commencing on the scheduled Closing Date and continuing until and including the actual Closing Date. That portion of the closing costs which Seller would otherwise have been obligated to pay shall be decreased by the same amount. At any time during the Extension Period, Seller may elect to require that the closing occur by giving Purchaser written notice of the date on which the closing must occur (the “Revised Closing Date”). Seller’s remedies under this Section 4.2 are cumulative and receives --- and retains may be pursued concurrently, independently, or successively, in any order whatsoever. The parties acknowledge the Xxxxxxx Money as provided herein, and because difficulty of determining the actual damages suffered by Seller as resulting from a result of such breach default by Purchaser would be impracticable or extremely difficult or impossible to determine, Purchaser under this Agreement and Seller agree that the amount of the Xxxxxxx Money shall be the amount of liquidated damages to which Seller is entitled described in such event and that the amount this Section 4.2 represent a reasonable estimate of such liquidated damages is reasonable and does are not constitute a penalty. Upon full receipt of the Xxxxxxx Money by Seller pursuant to (a) above, this Agreement, including the purchase and sale obligations of Purchaser and Seller hereunder, shall be deemed automatically terminated, and the parties shall have no further rights, obligations or liabilities hereunder, provided however, the recovery of reasonable attorneys' fees (whether incurred in connection with nonjudicial action, prior to trial or at trial, including any proceedings under the Bankruptcy Code, excluding, however, any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement shall not be limited hereby. If Purchaser hinders, delays, contests or interferes with Seller's receipt or retention of the Xxxxxxx Money (or attempts to do any of the foregoing), then in any action brought thereon, the prevailing party shall be entitled to recover reasonable attorney's fees and expenses (whether incurred in connection with nonjudicial action, prior to trial, at trial or on appeal or review, including any proceedings under the Bankruptcy Code). If Seller is the prevailing party, such amounts shall be in addition to retention of the Xxxxxxx Money, and if Purchaser is the prevailing party, such amounts shall be in addition to the return of the Xxxxxxx Money by Seller.