Common use of Purchaser Default Clause in Contracts

Purchaser Default. (i) If Purchaser fails to perform any of its obligations under this Agreement which are required to be performed at or prior to the Closing (including, without limitation, the payment of the balance of the Purchase Price and the payment of any amounts required to be paid by the terms of the Termination Agreements) ("Purchaser Default"), then Seller shall have the right, as its sole and exclusive remedy for such failure, to terminate this Agreement by delivering written notice thereof to Purchaser, in which event (x) subject to subsection (y) below, the ▇▇▇▇▇▇▇ Money shall be retained by Seller as liquidated damages or (y) in the event the Purchaser Default is due to a default by Purchaser under Section 5(d)(iii) hereof, the ▇▇▇▇▇▇▇ Money shall be retained by Seller and Purchaser shall be obligated immediately to pay to Seller an additional Five Million Dollars ($5,000,000.00) as liquidated damages. SELLER AND PURCHASER AGREE THAT SELLER'S ACTUAL DAMAGES IN THE EVENT OF A PURCHASER DEFAULT ARE UNCERTAIN AND DIFFICULT TO ASCERTAIN, AND THAT THE ▇▇▇▇▇▇▇ MONEY (OR THE ▇▇▇▇▇▇▇ MONEY PLUS $5,000,000.00, IF SUBSECTION (y) ABOVE IS APPLICABLE) IS A REASONABLE ESTIMATE OF SELLER'S DAMAGES. SELLER'S INITIALS: /s/ TRR PURCHASER'S INITIALS: /s/ RAL --------------- -------------- (ii) Notwithstanding the foregoing, in the event the Closing hereunder occurs and Purchaser fails to perform an obligation under this Agreement (arising either before or after the Closing) and such obligation expressly survives the Closing pursuant to the terms hereof, then Seller shall have all rights and remedies at law, in equity or under this Agreement, including, without limitation, the right to ▇▇▇ for damages (excluding, however, special, punitive or consequential damages).

Purchaser Default. (i) If The parties acknowledge and agree that Seller should be entitled to compensation for any detriment suffered if Purchaser fails to consummate the purchase of the Property if and when required to do so under the terms of this Agreement, but agree that it would be extremely difficult to ascertain the extent of the actual detriment Seller would suffer as a result of such failure. Consequently, if Purchaser fails to consummate the purchase of the Property on the Closing Date or fails to perform any of its other covenants in any material respect, or otherwise defaults in its obligations under this Agreement which are required to be performed at or prior to the Closing (including, without limitation, the payment of the balance of the Purchase Price and the payment of any amounts required to be paid by the terms of the Termination Agreements) ("Purchaser Default")hereunder, then Seller shall have be entitled to terminate this Agreement by giving written notice thereof to Purchaser prior to or at the rightClosing, in which event the Deposit shall be paid to Seller as fixed, agreed and liquidated damages and as its sole and exclusive remedy remedy, and, after the payment of the Deposit to Seller, neither Seller nor Purchaser will have any further rights or obligations under this Agreement, except for such failureany obligations that expressly survive termination, except that Seller shall have the right to terminate this Agreement by delivering written notice thereof to Purchaser, in which event (x) subject to subsection (y) below, the ▇▇▇▇▇▇▇ Money shall be retained by Seller as liquidated pursue an action against Purchaser for Seller’s actual damages or (y) in the event the Purchaser Default is due to suffered on account of a default by Purchaser under Section 5(d)(iii) hereofSections 5.1.2, the ▇▇▇▇▇▇▇ Money shall be retained by Seller 6.2, 12.2, and Purchaser shall be obligated immediately to pay to Seller an additional Five Million Dollars ($5,000,000.00) as liquidated damages. SELLER AND PURCHASER AGREE THAT SELLER'S ACTUAL DAMAGES IN THE EVENT OF A PURCHASER DEFAULT ARE UNCERTAIN AND DIFFICULT TO ASCERTAIN, AND THAT THE ▇▇▇▇▇▇▇ MONEY (OR THE ▇▇▇▇▇▇▇ MONEY PLUS $5,000,000.00, IF SUBSECTION (y) ABOVE IS APPLICABLE) IS A REASONABLE ESTIMATE OF SELLER'S DAMAGES. SELLER'S INITIALS: /s/ TRR PURCHASER'S INITIALS: /s/ RAL --------------- -------------- (ii) Notwithstanding the foregoing, in the event the Closing hereunder occurs and Purchaser fails to perform an obligation under this Agreement (arising either before or after the Closing) and such obligation expressly survives the Closing pursuant to the terms hereof, then Seller shall have all rights and remedies at law, in equity or under 15.17 of this Agreement, including, without limitation, the right to ▇▇▇ for damages (excluding; provided, however, specialthat nothing contained herein shall constitute a waiver by Seller of any damages, rights or remedies which may be available to Seller against Purchaser at law or in equity as a result of any material breach of a representation or warranty or other material default of Purchaser hereunder (other than Purchaser’s failure to consummate the purchase of the Property on the Closing Date for which Seller shall be paid the Deposit in accordance with the immediately preceding sentence), all of which are hereby expressly reserved by Seller; provided, however, nothing contained herein shall entitle Seller to consequential or punitive damages or consequential any other sums in excess of Seller’s actual damages).

Purchaser Default. (i) If If, prior to Closing, Purchaser materially breaches or fails to perform any of its obligations under covenants herein in any material respect and as a result thereof fails to close as required by this Agreement Agreement, and such breach or failure shall continue for a period of fifteen (15) Business Days after written notice thereof from Seller specifying to which are required Facility the default applies and the specific nature of the default (other than a failure to deliver the Portfolio Purchase Price upon satisfaction of Purchaser’s Conditions Precedent for which no cure period shall be performed at or prior to the Closing (including, without limitationgiven), the payment of parties stipulate and agree that actual damages may be difficult, if not impossible, to compute. Consequently, in the balance of the Purchase Price and the payment event of any amounts required such material breach or failure by Purchaser pursuant to be paid by the terms this Section, then, provided that Sellers are not then in material breach of the Termination Agreements) ("Purchaser Default")any provision of this Agreement, then Seller shall have the right, as its Sellers’ sole and exclusive remedy for such failure, to terminate this Agreement by delivering written notice thereof to Purchaser, in which event (x) subject to subsection (y) below, the ▇▇▇▇▇▇▇ Money shall be retained by Seller as liquidated damages or (y) in the event the Purchaser Default is due to a default by Purchaser under Section 5(d)(iii) hereof, the ▇▇▇▇▇▇▇ Money shall be retained by Seller and Purchaser shall be obligated immediately to pay to Seller an additional Five Million Dollars ($5,000,000.00) as liquidated damages. SELLER AND PURCHASER AGREE THAT SELLER'S ACTUAL DAMAGES IN THE EVENT OF A PURCHASER DEFAULT ARE UNCERTAIN AND DIFFICULT TO ASCERTAIN, AND THAT THE ▇▇▇▇▇▇▇ MONEY (OR THE ▇▇▇▇▇▇▇ MONEY PLUS $5,000,000.00, IF SUBSECTION (y) ABOVE IS APPLICABLE) IS A REASONABLE ESTIMATE OF SELLER'S DAMAGES. SELLER'S INITIALS: /s/ TRR PURCHASER'S INITIALS: /s/ RAL --------------- -------------- (ii) Notwithstanding the foregoing, in the event the Closing hereunder occurs and Purchaser fails to perform an obligation under this Agreement (arising either before or after the Closing) and such obligation expressly survives the Closing pursuant except to the terms hereof, then Seller shall have all rights and remedies extent caused by any acts or omissions constituting fraud by Purchaser) at law, in equity or otherwise shall be either to (a) terminate this Agreement in its entirety and retain the Deposit (plus any accrued interest thereon) as fixed, agreed and liquidated damages and not as a penalty, or (b) terminate this Agreement only as to the specific Facility as to which Purchaser is in default, by giving written notice thereof to Purchaser prior to the Closing, in which event an amount equal to the amount of Deposit allocable to the Facility which is the subject of such default of Purchaser shall be paid to Sellers as fixed, agreed and liquidated damages and not as a penalty, and after the payment of such portion of the Deposit to Sellers, neither Sellers nor Purchaser will have any further rights or obligations under this AgreementAgreement with respect to such Facility, includingexcept for any obligations that expressly survive termination. In the event that Sellers elect to terminate this Agreement in its entirety, without limitationthen upon Sellers’ receipt of the Deposit (plus any accrued interest thereon), (i) all rights and obligations of Purchaser and Sellers under this Agreement shall expire, except for such provisions as expressly survive the expiration or the termination hereof; and (ii) Sellers hereby waive any right to ▇▇▇ action for damages (excludingspecific performance of Purchaser’s obligations under this Agreement and any other remedies at law or in equity. Notwithstanding the foregoing, however, special, punitive or consequential damages)nothing in this Section 10.02 shall be deemed to limit Sellers’ recovery in connection with the indemnity provided by Purchaser in Section 3.04 of this Agreement.

Purchaser Default. If, on the Closing Date, (i) If Purchaser fails to perform is in default of any of its obligations hereunder, or (ii) any of Purchaser's representations or warranties made herein are untrue, inaccurate or incorrect in any material respect, or (iii) any condition to the obligation of Seller to close hereunder has not been satisfied as a result of the failure by Purchaser to perform its obligations under this Agreement, or otherwise, then Seller may elect as its sole remedy, after first having given Purchaser notice and one (1) Business Day's opportunity to cure the same, either to (x) terminate this Agreement which are required by written notice to be performed at or prior to the Closing (including, without limitation, the payment of the balance of the Purchase Price Purchaser and the payment of Escrow Agent, promptly after which the Deposit with any amounts required to accrued interest thereon shall be paid by over to Seller, (y) waive such default, misrepresentation or condition and proceed to close the terms transaction under this Agreement, or (z) seek specific performance of the Termination Agreements) ("Purchaser Default")this Agreement. If this Agreement is so terminated, then Seller shall have be entitled immediately to the right, as its sole and exclusive remedy for such failure, to terminate this Agreement by delivering written notice thereof to Purchaser, in which event (x) subject to subsection (y) below, proceeds of the ▇▇▇▇▇▇▇ Money shall be retained by Seller Deposit plus any interest accrued thereon as liquidated damages or (y) in the event the Purchaser Default is due to a default by Purchaser under Section 5(d)(iii) hereof, the ▇▇▇▇▇▇▇ Money shall be retained by Seller and Purchaser shall be obligated immediately so instruct the Title Company in writing), and thereafter neither party to pay to Seller an additional Five Million Dollars ($5,000,000.00) as liquidated damages. SELLER AND PURCHASER AGREE THAT SELLER'S ACTUAL DAMAGES IN THE EVENT OF A PURCHASER DEFAULT ARE UNCERTAIN AND DIFFICULT TO ASCERTAIN, AND THAT THE ▇▇▇▇▇▇▇ MONEY (OR THE ▇▇▇▇▇▇▇ MONEY PLUS $5,000,000.00, IF SUBSECTION (y) ABOVE IS APPLICABLE) IS A REASONABLE ESTIMATE OF SELLER'S DAMAGES. SELLER'S INITIALS: /s/ TRR PURCHASER'S INITIALS: /s/ RAL --------------- -------------- (ii) Notwithstanding the foregoing, in the event the Closing hereunder occurs and Purchaser fails to perform an obligation under this Agreement (shall have any further rights or obligations hereunder other than any arising either before or after the Closing) and such obligation under any Section herein which expressly provides that it survives the Closing pursuant to the terms hereof, then Seller shall have all rights and remedies at law, in equity or under termination of this Agreement. The amount of liquidated damages set forth in this SECTION 11.1 shall be for all loss, damage and expense suffered by Seller, including, without limitation, the right loss of its bargain, it being agreed that Seller's damages are difficult if not impossible to ▇▇▇ for damages (excluding, however, special, punitive or consequential damages)ascertain.

Purchaser Default. (i) If Purchaser fails or refuses to perform any of its obligations under set forth herein within the time required, which failure or refusal continues for ten (10) days after notice from Seller and which failure or refusal is not waived by Seller or cured, for any reason other than the termination of this Agreement which are required Contract pursuant to be performed at a right to terminate expressly set forth herein or prior Seller’s failure to the Closing (including, without limitation, the payment of the balance of the Purchase Price and the payment of any amounts required to be paid by the terms of the Termination Agreements) ("Purchaser Default")perform Seller’s obligations hereunder, then Seller shall have the rightSeller, as its Seller’s sole and exclusive remedy for such failureremedy, to may terminate this Agreement Contract by delivering giving written notice thereof to Purchaser prior to or at the Closing, whereupon neither Purchaser nor Seller shall have any further rights or obligations to the other hereunder (other than Purchaser’s obligations to Seller set forth in Section 10 hereof), in which event (x) subject to subsection (y) below, and the Title Company shall deliver the ▇▇▇▇▇▇▇ Money (or so much thereof as has been deposited) to Seller, which shall be retained by Seller as constitute liquidated damages or (y) in the event the Purchaser Default is due to a default hereunder free of any claims by Purchaser under Section 5(d)(iii) hereof, or any other person with respect thereto. It is agreed that the ▇▇▇▇▇▇▇ Money shall to which Seller may be retained entitled hereunder is a reasonable forecast of just compensation for the harm that would be caused by Seller and Purchaser shall Purchaser’s breach, that the harm that would be obligated immediately caused by such breach is one that is impossible or very difficult to pay to Seller an additional Five Million Dollars ($5,000,000.00) as liquidated damages. SELLER AND PURCHASER AGREE THAT SELLER'S ACTUAL DAMAGES IN THE EVENT OF A PURCHASER DEFAULT ARE UNCERTAIN AND DIFFICULT TO ASCERTAIN, AND THAT THE ascertain but that the ▇▇▇▇▇▇▇ MONEY (OR THE Money is a reasonable estimation thereof, and that the payment of the ▇▇▇▇▇▇▇ MONEY PLUS $5,000,000.00, IF SUBSECTION Money upon such breach (yother than a breach of Purchaser’s obligations to Seller set forth in Section 10 hereof) ABOVE IS APPLICABLE) IS A REASONABLE ESTIMATE OF SELLER'S DAMAGES. SELLER'S INITIALS: /s/ TRR PURCHASER'S INITIALS: /s/ RAL --------------- -------------- (ii) Notwithstanding the foregoing, in the event the Closing shall constitute full satisfaction of Purchaser’s obligations hereunder occurs and Purchaser fails to perform an obligation under this Agreement (arising either before or after the Closing) and such obligation expressly survives the Closing pursuant to the terms hereof, then Seller shall have all rights and remedies at law, in equity or under this Agreement, including, without limitation, the right to ▇▇▇ for damages (excluding, however, special, punitive or consequential damages)default by Purchaser.

Purchaser Default. If (i) If Purchaser fails shall default in the payment of the Purchase Price or if Purchaser shall default in the performance of any of its other obligations to perform be performed on the Closing Date, or (ii) Purchaser shall default in the performance of any of its obligations under this Agreement which are required to be performed at or prior to the Closing Date and, with respect to any default under this clause (ii) only, such default shall continue for ten (10) days after notice to Purchaser, Seller's sole remedy by reason thereof shall be retain the Deposit (and any interest earned thereon), as liquidated damages for Purchaser's default hereunder (it being agreed that the damages by reason of Purchaser's default are difficult, if not impossible, to ascertain and the Deposit (and any interest earned thereon) is a reasonable estimate of Seller's actual damages in such event), and upon such receipt of the Deposit this Agreement shall be terminated and thereafter Purchaser and Seller shall have no further rights or obligations under this Agreement except for those that are expressly provided 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 takes any other actions with respect thereto (including, without limitation, the payment of the balance of the Purchase Price and the payment filing of any amounts required to be paid by lis pendens or other form of attachment against the terms of the Termination Agreements) ("Purchaser Default"Property), then Seller shall have the right, as its sole named Purchaser (and exclusive remedy for such failure, to terminate this Agreement by delivering written notice thereof to any assignee of Purchaser, in which event (x's interest hereunder) subject to subsection (y) below, the ▇▇▇▇▇▇▇ Money shall be retained by Seller as liquidated damages liable for all loss, cost, damage, liability or expense (y) in the event the Purchaser Default is due to a default by Purchaser under Section 5(d)(iii) hereof, the ▇▇▇▇▇▇▇ Money shall be retained by Seller and Purchaser shall be obligated immediately to pay to Seller an additional Five Million Dollars ($5,000,000.00) as liquidated damages. SELLER AND PURCHASER AGREE THAT SELLER'S ACTUAL DAMAGES IN THE EVENT OF A PURCHASER DEFAULT ARE UNCERTAIN AND DIFFICULT TO ASCERTAIN, AND THAT THE ▇▇▇▇▇▇▇ MONEY (OR THE ▇▇▇▇▇▇▇ MONEY PLUS $5,000,000.00, IF SUBSECTION (y) ABOVE IS APPLICABLE) IS A REASONABLE ESTIMATE OF SELLER'S DAMAGES. SELLER'S INITIALS: /s/ TRR PURCHASER'S INITIALS: /s/ RAL --------------- -------------- (ii) Notwithstanding the foregoing, in the event the Closing hereunder occurs and Purchaser fails to perform an obligation under this Agreement (arising either before or after the Closing) and such obligation expressly survives the Closing pursuant to the terms hereof, then Seller shall have all rights and remedies at law, in equity or under this Agreement, including, without limitation, the right to ▇▇▇ for damages (excludingreasonable attorneys' fees, however, special, punitive or court costs and disbursements and consequential damages)) incurred by Seller by reason of such action to contest by Purchaser.

Purchaser Default. (i) If there is a Purchaser fails to perform any of its obligations under this Agreement which are required to be performed at or Default prior to the Closing (including, without limitation, the payment consummation of the balance of the Purchase Price Closing, then, at Sellers’ election and the payment of any amounts required to be paid by the terms of the Termination Agreements) ("Purchaser Default")as Sellers’ exclusive remedy, then Seller shall have the right, as its sole and exclusive remedy for such failure, to Sellers may terminate this Agreement by delivering giving written notice thereof to Purchaser, in which event Purchaser shall forfeit the Deposit to Sellers and Escrow Agent shall deliver the Deposit to Sellers as liquidated damages (the parties agreeing that (x) subject Sellers’ losses resulting from a termination due to subsection a Purchaser Default would be difficult to quantify, and (y) belowsuch sum is not a penalty, but rather a reasonable measure of Sellers’ damages resulting from a termination due to a Purchaser Default). SELLERS ACKNOWLEDGE AND AGREE THAT THIS SECTION 10.1 IS INTENDED TO AND DOES LIMIT THE REMEDIES AVAILABLE TO SELLERS AND SHALL BE SELLERS’ EXCLUSIVE REMEDIES AGAINST PURCHASER HEREUNDER AND BOTH AT LAW AND IN EQUITY ARISING FROM OR RELATED TO A PURCHASER DEFAULT PRIOR TO THE CONSUMMATION OF THE CLOSING. For the purposes of this Agreement, the ▇▇▇▇▇▇▇ Money term “Purchaser Default” shall be retained by Seller as liquidated damages mean the occurrence of either of the following: (x) the conditions to Purchaser’s obligations to consummate the Transactions set forth in Article VIII have been satisfied and Purchaser defaults on its obligations under Section 5.3; or (y) Purchaser defaults in the event the Purchaser Default is due to a default by Purchaser under Section 5(d)(iii) hereof, the ▇▇▇▇▇▇▇ Money shall be retained by Seller and Purchaser shall be obligated immediately to pay to Seller an additional Five Million Dollars ($5,000,000.00) as liquidated damages. SELLER AND PURCHASER AGREE THAT SELLER'S ACTUAL DAMAGES IN THE EVENT OF A PURCHASER DEFAULT ARE UNCERTAIN AND DIFFICULT TO ASCERTAIN, AND THAT THE ▇▇▇▇▇▇▇ MONEY (OR THE ▇▇▇▇▇▇▇ MONEY PLUS $5,000,000.00, IF SUBSECTION (y) ABOVE IS APPLICABLE) IS A REASONABLE ESTIMATE OF SELLER'S DAMAGES. SELLER'S INITIALS: /s/ TRR PURCHASER'S INITIALS: /s/ RAL --------------- -------------- (ii) Notwithstanding the foregoing, in the event the Closing hereunder occurs and Purchaser fails to perform an obligation any material respect on any of its other performance obligations under this Agreement (arising either before or after has breached any of the Closing) Purchaser’s Representations, such default or breach results in the closing conditions set forth in Section 8.2 not being satisfied as of the Outside Closing Date and such obligation expressly survives the Closing pursuant to the terms hereof, then Seller shall have all rights and remedies at law, in equity default or under this Agreement, including, without limitation, the right to ▇▇▇ for damages breach is not cured within five (excluding, however, special, punitive or consequential damages)5) days after written notice from Sellers.