Common use of DEFAULT BY PURCHASER OR SELLER Clause in Contracts

DEFAULT BY PURCHASER OR SELLER. (a) Without limiting anything set forth in Section 8(e) hereof, if (1) Purchaser shall default in the payment of the Assignment Purchase Price, (2) Purchaser shall otherwise default in the performance of any of the other terms and provisions of this Agreement or the Existing Lease on the part of Purchaser to be performed, and fail to cure such default within three (3) business days after written notice thereof from Seller, or (3) cause Seller to be in default under any of its obligations under the Existing Lease, Seller may terminate this Agreement and retain the Deposit. Purchaser acknowledges that, if Purchaser shall default under this Agreement as aforesaid, Seller will suffer substantial adverse financial consequences as a result thereof. Accordingly, Seller’s sole and exclusive remedy against Purchaser shall be the right to retain the Deposit, as and for its sole and full and complete liquidated damages, it being agreed that Seller’s damages are difficult, if not impossible, to ascertain, and, Purchaser and Seller shall have no further rights or obligations under this Agreement, except those expressly provided herein to survive the termination of this Agreement. Nothing herein shall prevent Seller, following a termination of this Agreement, from consummating the purchase of the Property (pursuant to the Option or otherwise) and utilizing the Deposit or any portion thereof in respect thereof.

DEFAULT BY PURCHASER OR SELLER. (a) Without limiting anything set forth in Section 8(e) hereof, if If (1i) Purchaser shall default in the payment in the performance of any of its obligations to be performed on the Assignment Purchase PriceClosing Date, other than due to a default by Seller, and as a result of such Purchaser default the transaction contemplated by this Agreement shall not close in accordance with the terms of this Agreement, (2ii) Purchaser shall otherwise default in the performance of any of the other terms and provisions of this Agreement or the Existing Lease on the part of Purchaser its material obligations to be performed, performed prior to the Closing Date and fail to cure such default within three shall continue for ten (310) business days after written notice thereof from Sellerto Purchaser, or (3iii) cause Seller to be Fund Member or Developer shall default in default under the performance of any of its material obligations to be performed under the Existing LeaseDevelopment Agreement or the Operating Agreement, as applicable, prior to the Closing Date and such default shall continue beyond any applicable notice and cure period provided thereunder (if any) and Related/Oxford Guarantor (as defined in the Development Agreement) shall fail to perform or caused to be performed such obligations in accordance with the terms of the Related/Oxford Guaranty (as defined in the Development Agreement) within the time period required thereunder, then Seller’s sole remedy under this Agreement by reason of any such default (but in addition to any remedies Seller or any affiliate of Seller may have under the Development Agreement or the Operating Agreement, as applicable) shall be to terminate this Agreement and retain to receive from Purchaser $6,500,000.00 (the Deposit. Purchaser acknowledges that, if Purchaser shall “Liquidated Amount”) as liquidated damages for Purchaser’s default under this Agreement as aforesaid, Seller will suffer substantial adverse financial consequences as a result thereof. Accordingly, Seller’s sole and exclusive remedy against Purchaser shall be the right to retain the Deposit, as and for its sole and full and complete liquidated damageshereunder, it being agreed that Sellerthe damages by reason of Purchaser’s damages default are difficult, if not impossible, to ascertain, andand upon the making of such payment, Purchaser this Agreement shall cease and Seller terminate, and neither party shall have no any further rights or obligations under this Agreement, hereunder except for those that are expressly provided herein in this Agreement to survive the termination hereof. If Seller terminates this Agreement pursuant to a right given to it hereunder and Purchaser takes any action which interferes with Seller’s ability to sell, exchange, transfer, lease, dispose of or finance the Property or take any other actions with respect thereto (including, without limitation, the filing of any lis pendens or other form of attachment against the Property), then the named Purchaser (and any permitted assignee of Purchaser’s interest hereunder) shall be jointly and severally liable for all losses, costs, damages, liabilities or expenses (including, without limitation, reasonable attorneys’ fees, court costs and disbursements and consequential damages) incurred by Seller by reason of such action to contest by Purchaser. Notwithstanding the foregoing, none of the above liquated damages shall be deemed to reduce or waive in any respect the additional obligations of Purchaser to indemnify Seller as provided in this Agreement. Nothing herein shall prevent Seller, following a termination of this Agreement, from consummating the purchase of the Property (pursuant to the Option or otherwise) and utilizing the Deposit or any portion thereof in respect thereof.

DEFAULT BY PURCHASER OR SELLER. (a) Without limiting anything set forth in Section 8(e) hereof, if If (1i) Purchaser shall default in the payment of the Assignment Purchase PricePrice or any portion thereof or in the performance of any of its other obligations to be performed on any Closing Date, or (2ii) Purchaser shall otherwise default in the performance of any of the other terms and provisions of this Agreement or the Existing Lease on the part of Purchaser its material obligations to be performedperformed prior to any Closing Date and, and fail with respect to cure any default under this clause (ii) only, such default within three shall continue for five (35) business days after written notice thereof from Seller, or (3) cause Seller to be in default under any of its obligations under the Existing Lease, Seller may terminate this Agreement and retain the Deposit. Purchaser acknowledges that, if Purchaser shall default under this Agreement as aforesaid, Seller will suffer substantial adverse financial consequences as a result thereof. AccordinglyPurchaser, Seller’s sole and exclusive remedy against Purchaser by reason thereof shall be to terminate this Agreement or, if the closing under the GM Contribution Agreement has occurred and such Purchaser default relates to a specific Individual Premises only, then Seller shall also have the right to terminate this Agreement as to the applicable Individual Premises only and, upon such termination, Seller shall be entitled to retain the Depositentire Deposit (or entire remaining portion thereof, as and applicable) or retain the portion of the Deposit allocable to such Individual Premises, as liquidated damages for its sole and full and complete liquidated damagesPurchaser’s default hereunder, it being agreed that Sellerthe damages by reason of Purchaser’s damages default are difficult, if not impossible, to ascertain, and, and thereafter Purchaser and Seller shall have no further rights or obligations under this AgreementAgreement (or under this Agreement with respect to the applicable Individual Premises, as applicable) except for those that are expressly provided herein in this Agreement to survive the termination hereof. Notwithstanding the foregoing, none of the above liquidated damages shall be deemed to reduce or waive in any respect the additional obligations of Purchaser to indemnify Seller or any other Seller Party as provided in this Agreement. Nothing herein shall prevent Seller, following a termination of this Agreement, from consummating the purchase of the Property (pursuant to the Option or otherwise) and utilizing the Deposit or any portion thereof in respect thereof.

DEFAULT BY PURCHASER OR SELLER. (a) Without limiting anything set forth in Section 8(e) hereof, if (1) If Purchaser shall default defaults in the payment of the Assignment Purchase Price, (2) Price or if Purchaser shall otherwise default in the performance of any of its other material obligations to be performed on or before the Closing Date and other terms and provisions than with respect to the payment of any amounts set forth in this Agreement or the Existing Lease on the part of Purchaser fails to be performed, and fail to cure correct such default within three two (32) business days Business Days after written notice thereof from Seller, Seller (but no such notice and cure period shall extend or (3) cause Seller to be in default under any of its obligations under postpone the Existing Lease, Seller may terminate this Agreement and retain the Deposit. Purchaser acknowledges that, if Purchaser shall default under this Agreement as aforesaid, Seller will suffer substantial adverse financial consequences as a result thereof. AccordinglyClosing Date), Seller’s sole and exclusive remedy against Purchaser by reason thereof shall be the right to terminate this Agreement and, upon such termination, Seller shall be entitled to retain the Deposit, Deposit and the Income as and liquidated damages for its sole and full and complete liquidated damagesPurchaser’s default hereunder, it being agreed that Sellerthe damages by reason of Purchaser’s damages default are difficult, if not impossible, to ascertain, and, and thereafter Purchaser and Seller shall have no further rights or obligations under this Agreement, Agreement except for those that are expressly provided herein in this Agreement to survive the termination of hereof. If Seller validly terminates this Agreement. Nothing herein shall prevent Seller, following a termination of this Agreement, from consummating the purchase of the Property (Agreement pursuant to the Option or otherwisea right given to it hereunder and Purchaser takes any action which interferes with Seller’s ability to (i) and utilizing retain the Deposit and/or the Income and/or (ii) sell, exchange, transfer, lease, dispose of or finance the Premises or take any portion thereof in other actions with respect thereofthereto (including, without limitation, the filing of any lis pendens or other form of attachment against the Premises), then the named Purchaser (and any permitted assignee of Purchaser’s interest hereunder) shall also be liable for all loss, cost, damage, liability or expense (including, without limitation, reasonable attorneys’ fees, court costs and disbursements and consequential damages) incurred by Seller by reason of such action to contest by Purchaser.

DEFAULT BY PURCHASER OR SELLER. (a) Without limiting anything set forth in Section 8(e) hereof, if If (1i) Purchaser shall default in the payment in the performance of any of its obligations to be performed on the Assignment Purchase PriceClosing Date, other than due to a default by Seller, and as a result of such Purchaser default the transaction contemplated by this Agreement shall not close in accordance with the terms of this Agreement, (2ii) Purchaser shall otherwise default in the performance of any of the other terms and provisions of this Agreement or the Existing Lease on the part of Purchaser its material obligations to be performed, performed prior to the Closing Date and fail to cure such default within three shall continue for ten (310) business days after written notice thereof from Sellerto Purchaser, or (3iii) cause Seller to be Fund Member or Developer shall default in default under the performance of any of its material obligations to be performed under the Existing LeaseDevelopment Agreement or the Operating Agreement, as applicable, prior to the Closing Date and such default shall continue beyond any applicable notice and cure period provided thereunder (if any) and Related/Oxford Guarantor (as defined in the Development Agreement) shall fail to perform or caused to be performed such obligations in accordance with the terms of the Related/Oxford Guaranty (as defined in the Development Agreement) within the time period required thereunder, then Seller’s sole remedy under this Agreement by reason of any such default (but in addition to any remedies Seller or any affiliate of Seller may have under the Development Agreement or the Operating Agreement, as applicable) shall be to terminate this Agreement and retain to receive from Purchaser $6,500,000.00 (the Deposit. Purchaser acknowledges that, if Purchaser shall “Liquidated Amount”) as liquidated damages for Purchaser’s default under this Agreement as aforesaid, Seller will suffer substantial adverse financial consequences as a result thereof. Accordingly, Seller’s sole and exclusive remedy against Purchaser shall be the right to retain the Deposit, as and for its sole and full and complete liquidated damageshereunder, it being agreed that Sellerthe damages by reason of Purchaser’s damages default are difficult, if not impossible, to ascertain, andand upon the making of such payment, Purchaser this Agreement shall cease and Seller terminate, and neither party shall have no any further rights or obligations under this Agreement, hereunder except for those that are expressly provided herein in this Agreement to survive the termination hereof. If Seller terminates this Agreement pursuant to a right given to it hereunder and Purchaser takes any action which interferes with Seller’s ability to sell, exchange, transfer, lease, dispose of or finance the Property or take any other actions with respect thereto (including, without limitation, the filing of any lis pendens or other form of attachment against the Property), then the named Purchaser (and any permitted assignee of Purchaser’s interest hereunder) shall be jointly and severally liable for all losses, costs, damages, liabilities or expenses (including, without limitation, reasonable attorneys’ fees, court costs and disbursements and consequential damages) incurred by Seller by reason of such action to contest by Purchaser. Notwithstanding the foregoing, none of the above liquated damages shall be deemed to reduce or waive in any respect the additional obligations of Purchaser to indemnify Seller as provided in this Agreement. Nothing herein shall prevent Seller, following a termination of this Agreement, from consummating the purchase of the Property (pursuant to the Option or otherwise) and utilizing the Deposit or any portion thereof in respect thereof.34

DEFAULT BY PURCHASER OR SELLER. (a) Without limiting anything set forth in Section 8(e) hereof, if If (1i) Purchaser shall default in the payment of the Assignment Purchase Price, or (2ii) Purchaser shall otherwise default in the performance of any of its other obligations to be performed prior to or on the other Closing Date and shall fail to close in accordance with the terms and provisions of this Agreement or the Existing Lease on the part of Purchaser and, with respect to be performed, and fail to cure only a default under this Section 17(a)(ii) if such default within three shall continue for five (35) business days after written notice thereof from Seller, or (3) cause Seller to be in default under Purchaser (provided, however, that such notice shall not extend any time of its obligations under the Existing Lease, Seller may terminate this Agreement and retain the Deposit. Purchaser acknowledges that, if Purchaser shall default under this Agreement as aforesaid, Seller will suffer substantial adverse financial consequences as a result thereof. Accordinglyessence closing date), Seller’s sole and exclusive remedy against Purchaser by reason thereof shall be the right to terminate this Agreement and, upon such termination, Seller shall be entitled to retain the Deposit, Remaining Deposit as and liquidated damages for its sole and full and complete liquidated damagesPurchaser’s default hereunder, it being agreed that Sellerthe damages by reason of Purchaser’s damages default are difficult, if not impossible, to ascertain, and, and thereafter Purchaser and Seller shall have no further rights or obligations under this Agreement, Agreement except for those that are expressly provided herein in this Agreement to survive the termination hereof. If Seller validly terminated this Agreement pursuant to a right given to it hereunder and Purchaser takes any wrongful action in bad faith that materially interferes with Seller’s ability to sell, exchange, transfer, lease, dispose of this Agreement. Nothing herein shall prevent Seller, following a termination of this Agreement, from consummating the purchase of or finance the Property (pursuant including, without limitation, the filing of any lis pendens or other form of attachment against the Property), then Purchaser shall be liable for all loss, cost, damage, liability or expense (including, without limitation, reasonable attorneys’ fees, court costs and disbursements but excluding incidental, remote and consequential damages, and lost profits) incurred by Seller by reason of such wrongful, bad faith action to the Option or otherwise) and utilizing the Deposit or any portion thereof in respect thereofcontest by Purchaser.

DEFAULT BY PURCHASER OR SELLER. (a) Without limiting anything set forth in Section 8(e) hereof, if If (1i) Purchaser shall default in the payment of the Assignment Purchase Price, (2ii) Purchaser shall otherwise default in the performance of any of the other terms and provisions of this Agreement or the Existing Lease on the part of Purchaser to be performed, and fail to cure the Closing does not occur as a result thereof, and such default within three shall continue for five (35) business days after written notice thereof from Sellerto Purchaser (provided, however, notwithstanding the foregoing, time shall be of the essence with respect to Purchaser's obligation to close hereunder on such date set for Closing as to which TIME SHALL BE OF THE ESSENCE pursuant to Section 5 hereof), or (3iii) cause Seller (A) Purchaser shall commence any case, proceeding or other action under any laws relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeks to have an order for relief entered with respect to it, or seeks to be adjudicated a bankrupt or insolvent, or seeks reorganization, arrangement, adjustment, liquidation, dissolution, composition or other relief with respect to it or its debts, or seeks the appointment of a receiver, trustee, custodian or other similar official for it or all or any substantial part of its property, or (B) Purchaser otherwise takes any action indicating its consent to, approval of, or acquiescence in, or in furtherance of, any of the acts described in clause (iii)(A), above, then in any of such cases, Purchaser shall be deemed to be in default under any of its obligations under the Existing Lease, Seller may terminate this Agreement and retain the Deposithereunder. Purchaser acknowledges that, that if Purchaser shall default under this Agreement as aforesaid, Seller will suffer substantial adverse financial consequences as a result thereof. Accordingly, Seller’s , as its sole and exclusive absolute remedy against Purchaser Purchaser, shall be have the right to retain the Deposit, as Deposit and for its sole and which Deposit shall constitute full and complete liquidated damages, it being agreed that Seller’s 's damages are difficult, if not impossible, to ascertain, and, and thereafter Purchaser and Seller shall have no further rights or obligations under this Agreement, except those expressly provided herein to survive the termination of this Agreement. Nothing herein shall prevent Seller, following a termination of this Agreement, from consummating the purchase of the Property (pursuant to the Option or otherwise) and utilizing the Deposit or any portion thereof in respect thereof.

DEFAULT BY PURCHASER OR SELLER. (a) Without limiting anything set forth in Section 8(e) hereof, if (1) If Purchaser shall default defaults in the payment of the Assignment Purchase Price, (2) Price or if Purchaser shall otherwise default in the performance of any of the its other terms and provisions of this Agreement or the Existing Lease on the part of Purchaser material obligations to be performed, and fail to cure such default within three (3) business days after written notice thereof from Seller, performed on or (3) cause Seller to be in default under any of its obligations under before the Existing Lease, Seller may terminate this Agreement and retain the Deposit. Purchaser acknowledges that, if Purchaser shall default under this Agreement as aforesaid, Seller will suffer substantial adverse financial consequences as a result thereof. AccordinglyClosing Date, Seller’s sole and exclusive remedy against Purchaser by reason thereof shall be the right to terminate this Agreement and, upon such termination, Seller shall be entitled to retain the Deposit, Deposit as and liquidated damages for its sole and full and complete liquidated damagesPurchaser’s default hereunder, it being agreed that Sellerthe damages by reason of Purchaser’s damages default are difficult, if not impossible, to ascertain, and, and thereafter Purchaser and Seller shall have no further rights or obligations under this Agreement, Agreement except for those that are expressly provided herein in this Agreement to survive the termination hereof. If Seller validly terminates this Agreement pursuant to a right given to it hereunder and Purchaser takes any action which interferes with Seller’s ability to (i) retain the Deposit and/or (ii) sell, exchange, transfer, lease, dispose of this Agreement. Nothing herein shall prevent Seller, following a termination of this Agreement, from consummating the purchase of or finance the Property or take any other actions with respect thereto (pursuant including, without limitation, the filing of any lis pendens or other form of attachment against the Property), then the named Purchaser (and any permitted assignee of Purchaser’s interest hereunder) shall also be liable for all loss, cost, damage, liability or expense (including, without limitation, reasonable attorneys’ fees, court costs and disbursements and consequential damages) incurred by Seller by reason of such action to the Option or otherwise) and utilizing the Deposit or any portion thereof in respect thereofcontest by Purchaser.